Hewson v Earl of Listowel

JurisdictionIreland
Judgment Date16 May 1893
Date16 May 1893
CourtChancery Division (Ireland)

Appeal.

Before WALKER, C., and FITZ GIBBON and BARRY, L. JJ.

HEWSON
and
EARL OF LISTOWEL

Mooney v. WillcocksUNK 28 L. R. Ir. 113.

Leonard v. St. Leger Barry MacD. 240.

M'Craith v. BurgessDLTR 26 Ir. L. T. R. 113.

Magner v. HawkesUNK 32 L. R. Ir. 285.

Griffin v. TaylorUNK 16 L. R. Ir. 197.

Hill v. Earl of AntrimDLTR 5 Ir. L. T. R. 72.

Spencer v. TedcastleUNK 32 L. R. Ir. 411.

Demesne land , 1881, sect. 58.

700 LAW REPORTS ( RELA ND). [L. R. I. Appeal. which I said that Henry's tenancy was " confirmed by the statute," 1893' while the tenancy of Richard had " received no such confirmation." MITLCAIRE I now unhesitatingly say that I never intended and do not now v. LANE-iorxr. intend to give any opinion upon the abstract question of the effect Barry, L.J. of the statute upon the position of a person getting possession without representation to a deceased tenant, and I hold myself perfectly free, independently of Jack8on v. ItIllaster(1), to consider that question whenever it is brought before us. Counsel for the respondent has relied on the case of Flannery v. Nolan (2). I pronounce no opinion whatever upon what has been called " the dictum" of Lord Justice Fitz Gibbon. There is much, perhaps, to be said for and against that dictum. Here it id unnecessary to express an opinion upon it, the present case being decided upon its own facts. Upon the question of triviality, I concur in what has been said by my brother Lord Justice Fitz Gibbon. I am of opinion, therefore, that the case must be sent back to the Land Commission to have the amount of the fair rent fixed. Solicitors for the appellant : Dundon 4 Doyle. Solicitor for the landlord: W. Lane-Joynt. G. Y. D. Appeal. HEWSON v. EARL OF LISTO WEL (3). 1893. May 1, 2, 16. Demesne land-Land Law (Ireland) Act, 1881, sect. 58. Lands surrounding a mansion-house, which have originally been demesne, may become undemesned by being included in an agricultural lease along with other lands belonging to the same landlord, where the whole was let as one entire farm. By an agreement, dated the 23rd March, 1810, J. H. agreed to pay to Lord VOL. XXXII.] Q. B. SS, EX. DIVISIONS. 701 E., his heirs and assigns, the rent of 1033 for part of the demesne of Ennis- Appeal. more (the house and number of acres in Miss Dora H.'s possession excepted), 1893. viz. Coulagoan, Bonahalig, and Beenameelane, in the county of K., for one year. HEWSON Leases to be executed at the desire of either, which were to contain the usual 27. clauses. LISTOWEL. By indenture, dated the 27th June, 1812, Lord E. demised to J. H. the farm and lands of Ennismore, together with the dwelling-houses, out-houses, and buildings, together with the gardens, orchards, and appurtenances, excepting mines and minerals, timber, and hunting and fishing, for thirty-one years, from the 25th March then last, or for the life of the Duke of York, whichever should last the longer, at the rent of 1150. By indenture, dated the 2nd August, 1819, Lord E. demised to J. H. the entire farm and lands of Ennismore, together with all the dwelling-houses, out-houses, buildings, gardens, orchards, and all the appurtenances, reserving all minerals, timber, game, and royalties, with liberty of fishing, to Lord E., for the life of G. H. (a son of the lessee) or twenty-four years, at the rent of 950. The lease contained a cover ant that the lessee would inclose the out-bounds of the demised premises with a good ditch 6 feet wide and 5 feet deep, and a covenant against alienation, under a penal rent, and a condition that the lessee would reside on and occupy the demised premises. J. H. was a connexion of Lord E.'s family, and, in 1810, Mrs. H. and Miss Dora H., also distant relations, were in possession of the house and demesne, which contained about 100 acres. Between 1810 and 1812 J. H. acquired the interest of Miss Dora H., and he subsequently got rid of certain sub-tenancies, which were created by Miss Dora H. in the demesne. The leases contained a total acreage of 1173A. 3n. 30p. In a map of the property, made in 1802, the central division is described as the "house and demesne." A sum of 1450 was borrowed from the Board of Works by the landlord, and spent in draining and improving the land, and embanking the river F., which flowed round the outskirts of the property. In 1875 G. H. (the son of the original lessee) applied for a renewal of the lease, and in letters which he wrote then used the term " demesne," and spoke of it as a considerable portion of the property, and seemed to distinguish it from the other portion of the lands, which he called farms : Held (reversing the decision of the Land Commission), that although the 100 acres round the house were originally demesne, they had become unÂÂdemesned by reason of their being included with the other lands in one entire farm. BY an agreement, dated the 23rd March, 1810, John Hewson (described as of Mount Pleasant, in the county of Limerick), agreed. to pay Lord Ennismore, his heirs, and assigns, the yearly rent of 1033 for part of the demesne of Ennismore (the house and number Appeal. of acres in Miss Dora Hewson's possession excepted), viz. CoulaÂÂ1893 . goan, Bonahalig, and Beenameelane, situate in the barony of HEWSON Iraghticonnor, and county of Kerry, for the term of one year, to LISTOWE L. commence on and from the 25th March, 1810, to be paid. by two equal half-yearly payments on every 29th of September and 25th of March; and, if the same should be unpaid, with liberty for Lord Ennismore to enter and distrain and to sell as in such cases are usual. Leases to be executed at the desire of either party, which were to contain the usual clauses between landlord and tenant, and the usual clauses contained in the leases made by his Lordship, and a reservation to Lord Ennismore, his heirs, and assigns, of all manner of quarries, ores, mines, minerals, timber, and timber trees, and all royalties ; and the said John Hewson was, during the term to do suit and service at the Courts Leet and Baron, and grind corn at the mills of the manors of Listowel and Lixnaw. By indenture bearing date the 27th June, 1812, made between Lord Ennismore of the one part and John Hewson of the other part, Lord Ennismore demised to John Hewson the farm and lands of Ennismore, together with all the dwelling-houses, out-houses, barns, stables, and buildings, together with the gardens, orchards, ways, waters, water-mills, and water-courses, and every other matter and, thing appertaining thereto as the said John Hewson then held and enjoyed the same, in the barony of Iraghticonnor, and county of Kerry, saving and excepting mines and minerals, timbers, trees, and woods, and also excepting to Lord Ennismore liberty of hunting, fishing, and fowling, in and upon the demised premises ; to hold for thirty-one years from the 25th March, then last, and for the life of the Duke of York, whichever should last the longer, at the rent of 1150 payable half-yearly on every 29th September and 25th March. The lease contained a covenant by the lessee that he would not alien or sell without the consent in writing of the said Lord Ennismore, his heirs or assigns, and in case the lessee should dispose of the premises without such consent as aforesaid that then the yearly rent of 1150 should from thenceforth increase and rise to 1400 yearly and should so continue during the lease or any renewal thereof. There was also a covenant that the lessee would lay out during the first four-years of the term the sum of VOL. XXXII.] Q. B. & EX. DIVISIONS. 703 400 in improving and repairing the dwelling-house and offices, and in draining, dividing and improving the lands, with power to the lessee to deduct 50 from the rent for the first four years, so that the lessee should receive an abatement of 200 from Lord Ennismore. There was also-a covenant to maintain and keep the demised premises in repair and yield up in repair at the expiraÂÂtion of the term. The sum of 400 was spent on improving the dwelling-house and premises between 1812, and 1819. By indenture dated the 2nd August, 1819, Lord Ennismore, in consideration of the rents and covenants thereinafter reserved, and particularly in consideration that John Hewson, his heirs, executors, administrators, and assigns, should during the demise inhabit and occupy the premises, demised to John Hewson, the entire farm and lands of Ennismore, together with all the dwelling-houses, outÂÂhouses, buildings, gardens, orchards, ways, passages, and all the apÂÂpurtenances thereto belonging, reserving all minerals, timber, game, and royalties, and with liberty of fishing, to Lord Ennismore; to hold to John Hewson, his heirs, executors, administrators, and assigns, for the life of George Hewson, the third son of the lessee, and in case the said George Hewson should happen to die before the expiration of twenty-four years, to commence from the 25th of March then last, then to hold for the residue of the said term of twenty-four years, at the rent of 950. The lease contained a covenant to make drains on the premises with a penalty of 10 a-year additional rent if the drains were not made : also a covenant by the lessee for himself and his under-tenants to grind corn at the mill to be appointed by Lord Ennismore : also a covenant that the lessee would within three years from the date of the lease inclose the out-bounds of the demised premises with a good ditch 6 feet wide and 5 feet deep and would plant the same with white thorn or crab quicks, and would also plant good oak, ash, beech, or elm-trees thereon, at the distance of 25 feet asunder, and would also join with the tenants of the neighbouring lands in making...

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