Irish Land Commission v Forde

• Jurisdiction: Ireland
• Judgment Date: 20 December 1917
• Docket Number: (1916. No. 6553.)
• Date: 20 December 1917
• Court: King's Bench Division (Ireland)

Irish Land Commission

and

Forde and Another (1).

K. B. Div.

Appeal.

(1916. No. 6553.)

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.

1918.

Landlord and tenant — Estate purchased by Irish Land Commission — Tenant failing to sign undertaking to purchase his holding — Non-payment of rent — Remedy — Irish Land Commission as landlords — Powers — Irish Land Act, 1903 (3 Ed. 7, c. 37), sects. 6, 18, and 19.

Where the Land Commission acquire an estate under sect. 6 of the Irish Land Act, 1903, they may, exercising the powers of landlords, proceed against a tenant who has failed to sign an undertaking to purchase his holding by way of ejectment for non-payment of rent.

Motion to set aside the judgment entered for the plaintiff by Gordon J.

The question for decision was whether the Irish Land Commission as owners of an estate acquired under sect. 6 of the Irish Land Act, 1903, could maintain ejectment for non-payment of rent in respect of a holding not the subject of a purchase agreement.

The following statement of facts is taken from the judgment of Gibson J. in the King's Bench:—

“Lord Westmeath having delivered an originating request under sect. 6 of the Land Act of 1903 by proposal, dated the 3rd September, 1913, the Commission offered to buy subject (inter alia) to tenant's interests. The untenanted land was 914a. 1r. 9p. The second schedule deals with tenanted lands; the price of the reversion on each holding was separately calculated; that for the holding of defendants was £960, and the annuity payable by the tenant was to be £31 4s. The lands were described as held under judicial tenancy of the 12th July, 1907. Certain reservations were to be inserted in the tenant's undertakings. By order, dated the 21st March, 1914, the Commission fixed March 18th, 1914, as the date on which they agreed to purchase, and the 18th March, 1915, was appointed as the closing day. The defendants, who were trustees, for minors, of a holding

on Lord Westmeath's estate, had failed to sign an undertaking, and, with Lord Westmeath's consent, the purchase-money had accordingly been reduced. On April 7th, 1914, this holding was included, and on April 9th, 1914, a vesting order of the entire estate was made pursuant to sect. 16 of the Land Act of 1903. If there was an undertaking by the tenant here, there was apparently no subsequent contract now capable of enforcement. Lord Westmeath's estate is absolutely vested in the Commission, who prima facie, unless disabled by statute, enjoy the rights he possessed. The ejectment is based on non-payment of three years' rent, £132 15s., and there is a certificate by the Commission showing £110 12s. 1d. as due. As practically the whole of the first year's rent, due on May 1st, 1914, accrued before the vesting order of 9th April, 1914, Mr. Wylie, to avoid any possible objection, consented that the rent supporting the judgment should be confined to the two last years, without prejudice to the right of the Commission to recover payment of the first year's. The point was suggested by the Court, and was not adverted to by counsel at the trial or in argument before us.

Jellett K.C., Pigot K.C., and Hugh Kennedy, for the defendants:—

In this case the property was dealt with by originating request under sect. 6 of the Land Act of 1903. The relation of landlord and tenant did not exist between the Land Commission and the defendants from the date at which the Land Commission became owners. The Land Commission are relying upon the provisions of Deasy's Act, but it is not incorporated in the Land Purchase code. Under the Land Act of 1870, Part 3, the Board of Works was only a conduit pipe to pass the estate from landlord to tenant. They are not given any power to recover rent. The Act of 1881 substituted the Land Commission for the Board of Works, and gave them similar powers.

It is suggested on the part of the Land Commission that their powers begin at the date of the agreement to purchase, and cease on the land being vested; but the powers given to the Land Commission are wholly inconsistent with those of an ordinary landlord. Parliament could have made the Land Commission landlords, as it did the Congested Districts Board, but it refrained from doing so. There is a great difference between the recovery of rent by the Land Commission and by the Congested Districts Board. If the plaintiffs' contention were right, all the special powers given to the Congested Districts Board would be unnecessary. The plaintiffs are seeking to perpetuate landlordism, which the Act was passed to abolish. The plaintiffs are confined to the remedy given them by the statute: see Attorney-General v. Great Eastern Railway (1); Baroness Wenlock v. River Dee Co. (2); R. v. County Court Judge of Essex and Clarke (3); Wolverhampton New Waterworks Co. v. Hawkesford(4). The Land Commission and the defendants stand in the relation to one another of trustee and cestui que trust, and a trustee will not be permitted to eject his cestui que trust for non-payment of rent. The plaintiffs being a statutory corporation have only limited powers, and cannot enforce remedies other than those specifically given or necessarily to be inferred; and ejectment for non-payment of rent is not included in such remedies.

Wylie K.C. and Babington, for the plaintiffs:—

When a vesting order is made in the case of a purchase by the Land Commission under sect. 6 of the Irish Land Act, 1903, the Land Commission become landlords of the estate and acquire all the rights which pass with the reversion. It is suggested that sect. 18 of the Act of 1903 and the other sections relied on by the defendants show that this is not so, and that they have no rights but those to be found in the code; but, on examination, this argument is answered by the code itself.

The Bright clauses of the Act of 1870 first provided for the purchase by tenant farmers of their holdings by means of money advanced by State through the Board of Works, the repayment of which was secured by an annuity recoverable in the same way as tithe rentcharge (sects. 44–48, and 49). The Land Commission were then established by sects. 41, 42 of the Act of 1881, the powers of the Board of Works were transferred to them (sect. 35), and they were given power to purchase estates

en bloc for the purpose of selling them to the occupying tenants (sect. 26). The Land Commission under sect. 26 had to be satisfied that three-fourths of the tenants paying two-thirds of the total rental were willing and able to re-purchase from them before they purchased the estate. The sale to the Land Commission under sect. 26 was carried out by conveyance. They had no rights until conveyance, and by the conveyance the reversion in fee passed to them with all its rights and interests, including the right to eject for non-payment of rent. They are, in fact, landlords for all purposes, subject to their statutory duty to re-sell. But they had no power to compel an unwilling tenant to buy, and if one of the unwilling tenants refused to buy, they had no remedy whatever unless they could eject him for non-payment of rent.

On a re-sale by the Land Commission to a tenant direct, the purchase-money was advanced by them, and repayable by an annuity recoverable in the same manner as the annuity under the Act of 1870. But in the case of an unwilling tenant there was no annuity. His rent continued the same until the annuity began. The statutory remedy only applied to the annuity, and what the defendants have failed to show is how the rent pending the re-sale was to be recovered unless the ordinary rights of the landlord passed to the Land Commission. It is moreover clear that the Land Commission rights are not limited to those to be found in the code, because the purchase-money includes untenanted land of which they can make lettings: Wallace'sEstate (1). And it has not been suggested that they cannot eject such tenants for non-payment of rent.

Now, as to the construction to be placed on sect. 18 of the Act of 1903. On sales to tenants, a vesting order was substituted for conveyance by sect. 8 of the Act of 1885, and a fiat for the vesting order by sect. 32 of the Act of 1896; and by sect. 35, sub-s. 2, of that Act interest on the purchase-money was made payable by the tenant from the date of the agreement for purchase until the annuity begins to run, recoverable as an instalment of the purchase-annuity, and, if the sale goes off, to be allowed to the tenant as a

payment on account of rent. This applies to re-sales by the Land Commission of lands bought by them under sect. 6 of the Act of 1903 (see sect. 18, sub-sect. 3, of that Act). This shows that rent does not cease upon purchase of the reversion by the Land Commission, though in practice it becomes interest in lieu of rent from the date at which the tenant signs an undertaking to purchase, with the liability to revert if the sale falls through. If no undertaking is signed, the rent continues to accrue. Sect. 18 of the Act of 1903 only applies to the rents and profits of lands agreed to be purchased by the Land Commission, that is, to the period between the signing of the agreement for sale by the landlord and the vesting of the landlord's interest in the Land Commission. This is an entirely new provision concerning a new period. Before the Act of 1903 the rent was payable to the landlord until conveyance; now the interest in lieu thereof is payable to the Land Commission from the date of the agreement for sale. Sect. 18 had no wider application than to provide for this new arrangement, and it was not intended to take away rights the Land Commission already had. Once the vesting order is made, vesting the landlord's interest in the Land Commission, sect. 18 ceases to apply, and the Land Commission are in the same position as under sect. 26 of the Act of 1881...