Glenny, Landlord; Bell, Tenant

• Jurisdiction: Ireland
• Judgment Date: 17 December 1897
• Date: 17 December 1897
• Court: Court of Appeal (Ireland)

Glenny

Landlord

and

Bell

Tenant (1).

Appeal.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1898.

Landlord and tenant — Fair rent — Fee-farm grant — Land Law (Ireland) Act,1887 — Redemption of Rent (Ireland) Act, 1891.

By indenture of lease, dated 9th March, 1874, in consideration of a fine of £1300, G. demised to B., his heirs and assigns, the lands of D. for three lives, with a covenant for perpetual renewal, subject to the rent of £100 per annum. On the 23rd September, 1874, G. made to B. a fee-farm grant of the lands at the same rent. The lands had formerly been let at a higher rent. In 1895 the grantee served notice to redeem the rent; the landlord declined to consent, and the case came before a Sub-Commission to fix a fair rent.

Held, on the facts of the case that the Land Commission, in fixing the fair rent, ought not to make a deduction from what would otherwise be a fair rent by reason of the payment of the fine of £1300.

Robert Glenny, the father of the landlord, purchased the lessee's interest in a lease for lives renewable for ever in the lands of Dromart, in the county of Armagh, for £2,575 in the Incumbered Estates, and obtained a conveyance of them dated the 30th January, 1856. Shortly after 1856, the lands were let by Robert Glenny to a tenant named Todd, at the rent of £170 per annum. Todd surrendered his interest in 1869. The lands were again let from year to year on the 25th February, 1870, at the annual rent of £180, to a tenant named Holland, who remained in possession for three years, and the lands were thereafter and until the 9th of March, 1874, in the landlord's hands.

By indenture of lease, dated the 9th March, 1874, Robert Glenny, in consideration of a fine of £1300, demised to Benjamin Bell, his heirs and assigns, the lands of Dromart for three lives, with a covenant for perpetual renewal, subject to the rent of £100 per annum. By indenture dated the 23rd september, 1874, between Robert Glenny and Benjamin Bell, after reciting the conversion of the landlord's interest into a fee-farm grant, the said Robert Glenny, in pursuance of the provisions of the Renewable Leasehold Conversion Act, granted the said lands to Benjamin Bell, his heirs and assigns, forever at the yearly fee-farm rent of £100.

Isaac Bell, the tenant, was the son of Benjamin Bell, and was entitled to the interest of his father in the said lands, and Robert Edward Glenny, the present landlord, was the owner of the fee-farm rent of £100.

On the 6th September, 1895, the tenant served an originating notice under the Redemption of Rent Act, 1891, to redeem the fee-farm rent, and on the landlord declining to consent to the redemption of the rent, the case came before a Sub-Commission to fix the fair rent of the holding, and by an order dated the 19th December, 1896, the fair rent was fixed at £70. As stated in the 6th par. of the case stated, in arriving at this rent of £70 the Sub-Commissioners treated the payment of the £1300 on the occasion of the granting of the lease of the 9th March, 1874, as having been made for a part purchase of the lessor's interest in the said lands, and on that ground they considered that of the annual rent of £96, which they estimated as the fair rent of the holding, the tenant was entitled to a deduction of £26 per annum, representing the proportion between the fine of £1300 and what they estimated to be the capitalised value of the holding when the lease was made.

Both parties served notice of re-hearing and on the hearing before the Land Commission the landlord stated that in 1874 his father, Robert Glenny, being anxious to let the lands, demanded from several applicants for the farm a rent of £200, and that his father believed the place to be worth that rent, and offered to anyone who applied for the farm to allow him £5 off this rent for every £100 paid, and that after certain negotiations between his father and Benjamin Bell, it was agreed that the rent should be £100, and should be reduced to that amount in consideration of £1300 paid to the said Robert Glenny by the intending lessee, and the landlord also stated that pursuant to this arrangement, the fine was paid to Robert Glenny, and the lease (of the 9th March, 1874) for lives renewable for ever was executed.

The Land Commission were of opinion (9th par.) on the evidence that the payment in question differed in no respect from an ordinary fine paid by a lessee on the granting of a lease, and that in the present case it was paid by Benjamin Bell, for the purpose of acquiring a perpetual or quasi-perpetual interest in the lands at a rent substantially lower than what, at the date of the lease, was the fair letting value of the lands, and that under the circumstances it was not obligatory in fixing a fair rent of the holding to make any deduction in respect of the fine so paid. The Land Commission were of opinion, that the fair rent of the holding should be fixed at the annual sum of £96, but at the request of the tenant's counsel they stated this question for the decision of the Court of Appeal—Whether, in fixing the fair rent of the holding in this case, the Court was bound as a matter of law to make a special deduction from what would otherwise be the fair rent by reason of the payment by Benjamin Bell to Robert Glenny of the sum of £1300 on the granting of the lease of the 9th March, 1874?

T. M. Healy and W. H. Brown, for the tenant:—

The £1300 was paid to fine down the rent, and what the tenant did was to purchase part of the landlord's interest. The landlord's counsel never argued the question whether the perpetuity is gone or not. In common sense, the fine ought to be taken into account. It is like a price given for tenant right, except that it was given here to the landlord, instead of an outsider. But the change effected furnishes a stronger ground in the tenant's favour. The tenant had formerly the tenure under a fee-farm grant; he gets a much lower tenure by fixing a fair rent. He gives up the right to assign or sublet; he has lost the mines and minerals; the landlord may get the rent raised in fifteen years, and if the fair rent is fixed the landlord can buy at the true value. Lanyon v. Clinton (1) governs this case. O'Neill v. Cooper (2) is also in our favour.

Bates and Hume, for the landlord:—

Lanyon v. Clinton (1) does not apply. There it was held that the consideration being gone for which the money was given, they were entitled to take that into consideration in reducing the rent. Here the tenant has received the consideration for his money. The lease here, or fee-farm grant, has run its full course and has expired, and no term of the letting on the occasion of the making of the fee-farm grant can still be considered to be in existence: Mairs v. Lecky (3); M'Geough Bond's Estate (4). The money was paid in the ordinary

sense in which a fine was paid, once it has been found that the money was paid to fine down the rent, and the Land Commission cannot take it into account in fixing a fair rent.

T. M. Healy and W. H. Brown, for the tenant:—

Bates and Hume, for the landlord:—

Lord Ashbourne, C.:—

[After stating the facts of the case as stated in the special case.]

The question asked must be taken in connection with the facts stated, which raise no abstract question, but require a decision between the conflicting views of the Sub-Commission and the Land Commission—between the view put forward by the case in its 6th paragraph and the opinion of the Land Commission itself as stated in the 9th paragraph.

Mr. Healy in arguing the case, wisely, in my opinion, refused to rest his contention upon the view of the Sub-Commission, or to press for the adoption of the alternative, or the argument mentioned in the 6th paragraph. He...