Irish Land Commission v Moore

• Jurisdiction: Ireland
• Judgment Date: 29 June 1901
• Date: 29 June 1901
• Court: Court of Appeal (Ireland)

Irish Land Commission

and

Moore (1).

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.

Arrears of Rent (Ireland) Act, 1882—Termination of tenant's interest—Eviction for non-payment of rent—Successor in title of landlord—Liability of landlord to pay.

In and prior to 1882 the lands of Kilbride, in the county of Wicklow, were vested in trustees, upon trust for Mrs. M. for life, with remainder as she should appoint. One of the trustees was J. S. M., the husband of Mrs. M. In 1883 Q., a tenant on the estate, and J. S. M. obtained advances under the Arrears of Rent Act, and by charging orders, dated the 29th September, 1883, these two sums were charged on the lands, and made repayable by annual instalments for thirty-five years. J. S. M. and Mrs. M. died, and J. F. M., their son, succeeded to the property under an appointment from Mrs. M. The tenant Q. died in 1886, and was succeeded in the tenancy by L., who was ejected for non-payment of rent by J. F. M. in 1897. J. F. M. entered into possession of the holding, portion of which he let to K., retaining the residue in his own hands. The tenant paid the instalments of the annuity under the Arrears Act down to the date of the eviction. The Land Commission sued J. F. M. for the instalments accrued since the eviction:—

Held (by Lord Ashbourne, C., and Walker and Holmes, L.JJ., diss. FitzGibbon, L.J.), that J. F. M. was liable.

Case Stated by Madden, J., for the opinion of the Court, on the hearing of a civil bill appeal heard at the Spring Assizes at Wicklow. By civil bill dated the 12th September, 1899, the plaintiffs claimed to recover from the defendant £5 6s., being the amount of rentcharges due to the plaintiffs from part of the lands of Carricknagower and Ballyfolane, in the Electoral Division of Kilbride, Poor Law Union of Naas, and county of Wicklow, by charging orders dated the 29th day of September, 1883, under the Arrears of Rent Act (Ireland), 1882, sect. 16, being two years of said rentcharges, from July 1st, 1897, to 1st January, 1899, inclusive. The civil bill process was the only proceeding taken by the plaintiffs to recover the amount of the said rentcharge now sued for.

The County Court Judge dismissed the civil bill, and the plaintiffs appealed. The appeal was heard before Madden, J., at the Spring Assizes at Wicklow, 1900.

The lands were vested in trustees, under the Moore Estates Act,

1853 (16 & 17 Vict. c. vii), one of whom was Joseph Scott Moore, whose wife was tenant for life, with power of appointment. On her death on the 12th September, 1886, the defendant, J. Fletcher Moore, the son of the said J. Scott Moore and his wife, became seized of the said lands in fee-simple, under said settlement contained in the private Act and appointment.

On the 29th September, 1883, John Quinn, formerly tenant of said lands, in pursuance of sect. 16 of the Arrears of Rent (Ireland) Act, on the joint application of himself and the said Joseph S. Moore, obtained two advances of £8 and £45 respectively from the plaintiffs, and these two sums were by charging orders dated the 22th September, 1883, charged upon said lands, and made repayable by annuities of 8s. and £2 5s. respectively payable for thirty-five years, from the 1st July, 1883. The said John Quinn died in or about the year 1886, and William Lynch succeeded him in the holding and tenancy.

In April, 1897, the defendant recovered a decree in ejectment for nonpayment of rent against the said William Lynch, and entered into possession of the said holding, portion of which he subsequently re-let to Patrick Kearns, who is now in possession of the holding, and the defendant had the remaining portion in his own possession. The Judge found that the tenancy of the said John Quinn, and his successor Wm. Lynch was duly determined, and that the amount claimed in respect of the said annuity is still unpaid, but stated a case for the decision of the Queen's Bench.

The question for the decision of the Court was—Is the defendant liable to pay to the plaintiffs the sum of £5 6s.? The King's Bench Division, considering that they were bound by the decision of Irish Land Commission v. Scannel (1), decided in favour of the plaintiffs, and from that decision the defendant appealed.

Dudley White (with him Wakely, K.C.), for the appellant:—

The tenant alone is liable in the first instance under sect. 16 of the Arrears Act, and it is his interest that is primarily liable, and can be charged. Unless and until the Land Commission sold his tenancy to enforce their demand, no charge attaches upon the landlord's interest, nor does any personal liability arise against the landlord. The landlord's liability to pay the instalments of the

rentcharge was not merely contingent, but was also limited in amount, and it ceased when the tenancy upon which the instalments are a charge came to an end. If the tenancy was existing, the landlord did not become liable until in the first place the tenant had made default, and in the second place until there had been a sale of the tenancy, and even then the landlord's liability was confined to the amount of the deficiency of the sale. Such proceedings were a condition precedent to the existence of the landlord's liability. If a sale has become impossible, the landlord cannot be liable for the deficiency in the sale.

The defendant received no personal advantage from the advance which was made before he became landlord. There must be clear words to create personal liability. The cases under the Drainage and Improvement Codes are analogous, in which it was held that the liability ceased on the cesser of the security on which the rentcharge was charged: Attorney-General v. Ireland (1); Attorney-General v. Wilson (2); Commissioners of Public Works v. Symes (3); Attorney-General v. Fetherstonhaugh (4).

Ronan, K.C., Falconer, K.C., and De Renzy, for the respondents:—

The decisions under the Drainage and Improvement Codes do not apply. The advances there were made on the security of certain estates in the land, and the only subject-matter was the estate of the owner. But if that estate terminated, there was no power to fix the liability upon the estate in remainder, or any personal liability on the owner. The advance was made to the tenant alone. Here the advance was made on the joint application of landlord and tenant, and was paid to the landlord. The case has been twice decided already in favour of the plaintiffs in Irish Land Commission v. Scannel (5), and IrishLand Commission v. O'Connell (unreported (6)).

The definition of holding in the Land Law Act, 1881, is brought into the Arrears Act by sect. 1, which provides for “any holding to which the Land Law Act, 1881, applies.” “Holding” during the continuance of a tenancy means a parcel of land held by a tenant of a landlord, and upon the determination of such tenancy means the same parcel of land discharged from the tenancy. The holding is charged with a rentcharge: that charges the landlord's interest and the tenant's, and if default is made the Land Commission may sue either one or the other. That means the tenant who is there at the time; but if he is evicted, that does not do away with the remedy. If the contention of the defendant's counsel is right, then if the landlord evicted the farm for nonpayment of rent, and re-let it to a new tenant, or even to the old tenant, he could get rid of the whole liability. The section is a sort of application of the doctrine of Thomas v. Sylvester (1); the pernor must pay, not because he was bound by the covenant, but because he was in possession: Swift v. Kelly (2).

arguments. I am clearly of opinion that the principal sum is not at the present time due, and therefore if I were to take the civil bill in its existing form, I could not make a decree on it in favour of the plaintiffs; but I do hold that the instalments are a charge upon the land, and can be recovered from the defendant; that he is liable to pay them, and can be sued for them. I have, however, a grave and serious doubt as to whether he can be sued for any, except instalments that have accrued during the past two years; in fact, if I were obliged to decide that question upon the consideration which, up to the present I have given it, I would be of opinion he could not be sued for any previous instalments. Having come to the conclusion that he is liable for these two years' instalments, to that extent I am prepared to amend the process, and, Mr. Wade, on behalf of the Land Commission, having assented, I amend it by confining the civil bill to the two years' instalments of 17s. 6d., each due on 1st January, 1893, and 1st January, 1894. Treating the process in that form, I am prepared to give a decree to the Land Commission for that amount. Now, the ground upon which I have come to that conclusion is this—This 16th section of the Arrears Act, 1882, is somewhat curiously framed. It seems to be framed upon the basis that there would be always a tenant in occupation of the holding, and that there was no possibility of the landlord, after the advance, taking possession of the premises, either by accepting a surrender from the tenant, or by ejecting him on notice to quit, or, as in this case, for non-payment of rent. This is a peculiarity of the section, and. therefore

Dudley White (with him Wakely, K.C.), for the appellant:—

Ronan, K.C., Falconer, K.C., and De Renzy, for the respondents:—

Lord Ashbourne, C.:—

This is an appeal from the King's Bench Division, which following a circuit decision of Lord Justice Holmes, without expressing any opinion of its own, left the landlord free, if dissatisfied to bring the case before this Court on appeal.

It is a case stated by Mr. Justice Madden on a hearing of a civil bill appeal to recover the sum of £5 6s. representing four half-yearly instalments of two...