Grogan v Regan

• Jurisdiction: Ireland
• Judgment Date: 08 February 1901
• Date: 08 February 1901
• Court: Court of Appeal (Ireland)

Grogan

and

Regan (1).

Q. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1902.

Statute of Limitations—Landlord and tenant—Rent—Lessor, lessee, and sub-tenant—Payment of head rent voluntarily by sub-tenant—Non-payment of rent to immediate landlord for nineteen years by sub-tenant—23 & 24 Vict. c. 154, s. 21.

In the year 1881 the plaintiff became entitled under a will to the rent of £10 reserved by a yearly tenancy, but never received any payment of the said rent. The yearly tenant, since the year 1881, had paid no rent to his immediate landlord in respect of the premises held by him under the yearly tenancy, but he had, since the year 1890, paid one moiety of the head rent reserved by an old lease, and payable by his immediate landlord in respect of the premises. These payments in respect of the head rent were made voluntarily. In the year 1900 the plaintiff sued the defendant for rent under the yearly tenancy:—

Held (reversing the decision of the Queen's Bench Division), that the rent was statute barred, and was not kept alive by the payments made in respect of the head rent.

Case Stated upon the hearing of a civil bill appeal before Murphy, J. The case stated was as follows:—

“The defendant appealed against a decree of the County Court Judge for £5 for rent of premises in Ballyhaunis, County Mayo. It is proved or admitted that the premises were held with others under a lease for a long term of years at a rent of £3. The predecessors of the defendant had been yearly tenants to the predecessors of the plaintiff at a rent of £10 a-year under a parol contract of tenancy. The defendant is the widow of one Michael Regan, who died in 1898: the premises were assigned to him by his father, Thomas Regan, on the occasion of his marriage, by assignment, a copy of which is set out in the schedule.

“The plaintiff was born in 1887, and was a son of Thomas Grogan, who died in 1872, leaving the plaintiff and two other children surviving him and still alive. The said Thomas Grogan

was son of Michael Grogan, the lessee. The plaintiff claimed under his grandfather's will, a copy of which, with the letters of administration, is set out in the schedule. His right, if any, accrued in 1881, and it was admitted he had never received any rent out of the defendant's premises, but it was proved that rent had been paid to his grandmother, Mary Grogan, up to her death in 1881, and it was admitted that Michael Regan and the defendant successively, when in possession, had for ten years, namely, from 1890 onward, paid half the head rent of £3 to the head landlord, the other half being paid by John Biesty, who was in occupation, rent free, of the rest of the premises comprised in the lease. The receipts for head rent were given in the name of ‘representatives of Michael Grogan,’ who was the original lessee. A copy of one of the receipts is set out in the schedule.

“For the defendant it was contended that the plaintiff was not entitled to recover, and that his right (if any) was statute barred.

“For the plaintiff the payment of the head rent was relied on as taking the case out of the Statute of Limitations.

“I was of opinion that the plaintiff was not entitled to recover, but at the request of his counsel I agreed to state this case for the opinion of the Court.”

A schedule containing the documents above mentioned was appended, but it is not necessary to set the documents out for the purposes of this report.

Powell and Taylor, Q.C., for the plaintiff.

G. O'Connor and Fetherstonhaugh, Q. C., for the defendant.

Cur. adv. vult.

The judgment of the Court was delivered by—

Powell and Taylor, Q.C., for the plaintiff.

G. O'Connor and Fetherstonhaugh, Q. C., for the defendant.

Madden, J.:—

This case raises a question which was suggested in Ahearne v. M'Swiney (1), but which does not appear to have been as yet decided:—the effect, as between sub-lessee and his immediate

lessor, of the payment of head rent, voluntarily made under the 21st section of the Landlord and Tenant Consolidation Act of 1860. I say voluntarily, for there is no evidence of compulsion in the present case.

Before this Act was passed it was well settled that such a payment made by a sub-lessee under compulsion on the part of the head landlord must be taken as made by the sub-lessee on behalf of his immediate landlord. Referring to the authorities by which this principle was established, O'Brien, J., said:—“Upon referring to those cases it will be seen that in all of them the head landlord had either distrained, or threatened to distrain, the under-tenant, or had demanded the head rent from him; and, according to the judgment of Baron Rolfe in Graham v. Alsopp (1), the general principle to be deduced from those cases is, that if a tenant be compelled by the head landlord to pay the head rent, he may treat such payment as made in discharge of the rent due by him to his immediate landlord (2).” Under such circumstances it was held that the under-tenant could maintain an action to recover the amount from his immediate landlord, as money paid to his use, and at his request.

But where the payment of head rent was voluntarily made, the principle of these cases did not apply; and, in the judgment from which I have quoted, O'Brien, J., observed that no authority had been cited as deciding that a payment made otherwise than under compulsion gave the under-tenant any present right of action against his immediate landlord. Although there is no decision on the point, there is high authority for the proposition that even a voluntary payment of head rent by a sub-lessee will be presumed, in the absence of evidence to the contrary, to have been made by arrangement with the intermediate landlord. We have been referred to two cases in which this question was suggested. The earlier of those, Drew v. Norbury (3), is a well-known authority on another branch of the law. The question upon the Statute of Limitations was not discussed on the re-argument before Sir Edward Sugden, C., Blackburne, C.J., and Pennefather, B., the argument being confined to the construction

of the Registry Acts...