H. B. FOOT and E. T. WARREN, Executors of E. Carleton, v K. WARREN, D. O'CALLAGHAN and Others

• Jurisdiction: Ireland
• Judgment Date: 28 May 1859
• Date: 28 May 1859
• Court: Court of Exchequer Chamber (Ireland)

Queen's Bench.

Exch. Cham.

H. B. FOOT and E. T. WARREN, Executors of E. Carleton,

and

K. WARREN, D. O'CALLAGHAN and others.

Lessee Porter v. French 9 Ir. Law Rep. 514.

Shenton v. CorballyUNK 1 Hogan, 403.

Lyon v. ReedENR 13 M. & W. 285.

Lessee Warrington v. Hodgens Batty, 311.

Daniell v. Woodroffe 2 H. L. Cas. 811.

Rede v. FarrENR 6 M. & S. 121.

Lord Stafford's caseUNK 8 Rep. 73 b.

M'Quirk v. Reilly 2 H. & B. 301, 307 n.(a).

Smyth v. Nangle 2 Jebb & Sy. 629.

Davenport's caseUNK 8 Rep. 144 b

Beadon v. PikeENR 5 M. & S. 146.

Strickland v. StricklandENR 8 C. B. 724.

O'Brien v. Tiernan 1 Jebb & Sy. 117.

Mackay v. MackrethENR 4 Doug. 213.

Pike v. EyreENR 9 B. & C. 909; S. C., 4 M. & Ry. 661.

Pierse v. Sharr 2 M. & Ry. 418.

Sparks' caseENR Cro. Eliz. 676; S. C., Hetley, 73; Moore, 569.

Thomas v. PackerENR 1 H. & N. 669; S. C., 3 Jur., N. S., 143; 26 Law Jour., Exch., 207.

Thompson v. Amey 12 A. & E. 476; S. C., 4 P. & D. 177.

Regina v. HaughtonENRUNKUNK 1 El. & Bl. 501; S. C., 17 Jur. 455; 22 L. J., M. C., 89.

Thomas v. Packer Supra

Thompson v. Home 1 Jebb & Sy. 424; S. C., 1 Ir. Law Rep. 179.

Warren v. Martin 2 Jebb & Sy. 424; S. C., 3 Ir. Law Rep. 79.

Timmins v. RowlinsonENR 3 Burr. 1603.

Charters v. Gilroy 1 Cr. & D., C. C., 454.

Young v. M'Nally 2 C. & D., C. C., 34.

Young Ir. Cir. Rep. 59.

Lessee Clanmorris v. Bourke 13 Ir. Law Rep. 305.

Finch v. MillerENR 5 C. B. 428.

Hyatt v. Griffiths 17 Q. B. 505.

Digby v. AtkinsonENR 4 Camp. 275, 278.

Thomas v. Field 2 Dowl. 542.

Roberts v. Thurstout 1 H. & B. 354 n.

Shenton v. Corbally 1 Hog. 403.

Warner v. Martin 2 Jebb & Sy. 424; S. C., 3 Ir. Law Rep. 79.

Shenton v. Corbally Supra.

Thomas v. Packer Supra.

Lessee of Black v. Davis Batty, 80.

England v. SladeENR 4 T. R. 382.

Doe v. RamsbottomENR 3 M. & S. 516.

Langford v. SelmesENR 3 K. & J. 220.

Warner v. Martin 2 Jebb & S. 424; S. C., 3 Ir. Law Rep. 79.

Roninson v. Bousfield 6 Q. B. 492.

Shenton v. Corbally 1 Hog. 403, 430.

Thompson v. AmeyENR 12 Ad. & El. 476.

Bromfield v. SmithENR 6 East, 530.

Oldershaw v. Breach 6 Esp., N. P. C., 106.

Tilt v. StrattonENR 4 Bing. 446.

Shenton v. Corbally 1 Hog. 403.

COMMON LAW REPORTS, OF CASES ARGUED AND DETERMINED IN THE COlTSTS OF • QUEEN'S BENCH, COMMON PLEAS, EXCHEQUER; ertbtquer amber, AND COURT OF CRIMINAL APPEAL. M. T. 1858. H. T. 1859. Queen's Bench. Nov. 23, 24. Jan. 14, 15. H. B. FOOT and E. T. WARREN, Executors of E. Carleton, Exch. Chan:. E. T. 1859. T. T. 1859. V. K. WARREN, D. O'CALLAGHAN and others.* April 30. May 2, 3, 28. EJECTMENT for non-payment of rent reserved by a lease dated the By indenture in 1761, D. 30th of July 1782.-Defence : That the lands were not, at the time O'Callaghan, sen., demised of issuing of the plaint, nor at any time since, nor are now, holden lands to Nash for two lives, of the plaintiffs, or either of them, by defendants, or any of them, and such other or by any person or persons, as tenants OD tenant to the plaintiffs, or lives as should for ever there- either of them, as in plaint mentioned. Issue thereon in the terms after be added, pursuant to the of the defence. The action was tried at Cork, before Greene, B., covenant for perpetual re at the Spring Assizes 1858; when the plaintiffs proved an indenture newal therein. In 1769, Nash of lease dated the 7th of November 1769, and duly registered, demised the same lands to by which J. Nash demised to W. Withers part of the lands of Withers for 993 years ; and Geganath or Windsor, in the barony of Barretts and county of in 1782, With- ers demised the Cork, for the term of 993 years from the 29th of September 1769 lands to Atkins for 950 years, at a profit-rent. Both the lives in the lease of 1761 being dead, that lease was renewed in 1794, to Nash's representatives, by C. O'Callaghan (heinat-law of D. O'Callaghan, Sen.), for the lives of two persons, the survivor of whom died in 1837. In 1807, C. O'Callaghan became assignee of Nash's interest. From 1823 to 1849, the assignees of Atkins' interest paid to D. O'Callaghan, jun. (heir-at-law of C. O'Cal * Coram LEFROY, C. J., PERRIN and O'BRIEN, J.J. 2 COMMON LAW REPORTS. at the yearly rent of £128. 8s. 5d., Irish currency. This lease contained provisoes for distress and for re-entry, in the event of there being no sufficient distress upon the lands ; and also contained a covenant that it should be lawful for Denis O'Callaghan, sen., under whom J. Nash derived, his heirs, &c., to enter and view the condition of the premises half-yearly ; and also a covenant for quiet enjoyment, without interruption by the lessor, his heirs, executors, administrators or assigns, or any person claiming or to claim under him or them. The plaintiffs also proved an indenture of lease, dated 30th of July 1782, and duly registered, by which W. Withers demised the same lands to W. Atkins for 950 years from the 25th of March 1783, at the yearly rent of £200 Irish currency (equivalent to £184. 12s. 4d. sterling), with similar provisoes for distress and for re-entry in the event of no sufficient distress ; and with similar laghan), as assignee of Nash's interest, the rent reserved by the lease of 1769, and also, during the same period, paid to the representatives of Withers the profit-rent reserved by the lease of 1782; but no rent was paid after 1849. In 1851, D. O'Callaghan, jun., brought ejectment for non-payment of the rent reserved by the lease of 1769, and recovered possession of the lands ; but the representatives of Withers were not served with O'Callaghan's ejectment. In 1858, Withers' repreÂsentatives having brought ejectment for non-payment of the rent reserved by the lease of 1782 :-Held, affirming the judgment of the Queen's Bench, that this ejectÂment was not maintainable, the tenancy, if any, being nothing more than a parol yearly tenancy, created by overholding, and payment of rent from 1837.- [PtooT, C. B., dissentiente.] The Irish statutable ejectment for non-payment of rent cannot be maintained upon a tenancy created by a parol demise from year to year, express or implied.- {Bloom, C. B., dissentiente.) Notwithstanding the covenant for perpetual renewal, by D. O'Callaghan, sen., in the lease of 1761, and even assuming that Nash and his representatives were bound to keep up that lease by due renewals, in order to keep on foot the term of 993 years demised by Nash to Withers in 1769, the result, at Law, of the assignment of Nash's interest to the heir-at-law of D. O'Callaghan, sen., in 1807, was to merge the lease of 1761 and the renewal thereof in the reversion, and therefore, upon the fall of the lives in that lease and renewal, to destroy the term of 993 years, which depended thereon for its continuance, the doctrine of enlargement not being applicable to such a state of facts, so as to keep the term subsisting.-[PICOT, C. B., dissentiente.] A tenancy which arises from overholding, and payment of rent after the expiraÂtion of a lease, is a parol tenancy from year to year, arising by implication of law, though regulated by such of the provisions of the expired lease as are applicable to a tenancy from year to year. The rule of Law, that, although the tenant is estopped from disputing the title of the landlord under whom he has taken possession, yet he is at liberty to show that the landlord's title has determined, applies to a statutable ejectment for non-payment of rent, as well as any other species of action. Per MONAHAN, C. J.-The 5 G. 2, c. 4, s. 4 (Ir.), applies only to surrenders of existing leases, and not to cases where leases have determined at Law. The object and effect of the Irish Ejectment Statutes considered. Thomas v. Packer (1 & N. 669 ; S. C., 3 Jnr., N. S., 143; 26 Law Jour., Exch., 207) considered in reference to the Irish Ejectment Statutes. COMMON LAW REPORTS. 3 covenants for the inspection of the premises by W. Withers and the M. T. 1858. 'Bench several head landlords, and for quiet enjoyment, as in the lease of Queen s . 1769. The title of W. Withers was traced by the plaintiffs to FOOT v. Elizabeth Carleton his daughter; and it was proved that John WARREN. Warren, who was tenant of the lands, and represented W. Atkins' interest under the lease of 1782, had, from 1823 to 1849, paid the yearly rents of £118. 10s. sterling to the defendant D. O'Callaghan, jun., the son and heir-at-law of C. O'Callaghan, and the grandson and heir-at-law of Denis O'Callaghan, sen., and of £66. 2s. 4d. sterling to the parties successively entitled under the will of W. Withers, viz., to his widow during her life, and, after her death, to his daughter Elizabeth Carleton, during her life ; and, after her death, to the plaintiff E. T. Warren, her executor. These two rents amounted together to the rent of £184. 12s. 4d. sterling (equivalent to £200 Irish currency), reserved by the lease of 1782. But, from 1849, John Warren ceased to pay either of the said rents. The plaintiffs also proved the death of Elizabeth Carleton in 1847 ; and that they, as her executors, had duly proved her will; and they also gave in evidence the declaration in an action of covenant in 1852, for rent under the lease of 1769, against John Warren (therein averred to be assignee of the estate of W. Withers), by the defendant D. O'Callaghan, jun., as heir-at-law of his father C. O'Callaghan, therein averred to be assignee of the estate of J. Nash, by a deed alleged to bear date the I I th of February 1807, and to have been made between the trustees of the will of J. Nash and C. O'Callaghan, the father of the defendant D. O'Callaghan, jun. The defendants proved an indenture of lease dated the 26th of November 1761, between Denis O'Callaghan, sen. (the grandfather of the defendant D. O'Callaghan, jun.) and J. Nash, by which, after reciting that Denis O'Callaghan, sen., was, by virtue of a lease dated the 12th of August 1723, and several renewals thereof, legally entitled...