John Minford v Robert Ernest Carse and William Hunter
| Jurisdiction | Ireland |
| Judge | K. B. Div.,Appeal. |
| Judgment Date | 14 December 1911 |
| Court | Court of Appeal (Ireland) |
| Docket Number | (1911. No. 1133.) |
| Date | 14 December 1911 |
K. B. Div.
Appeal.
(1911. No. 1133.)
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.
1912.
Executors — Lease — Liability for rent — Measure of — Administration action — Receiver — Rent payable in advance.
Held, by the King's Bench Division and the Court of Appeal, that the judgment should be set aside.
Held, by the King's Bench Division, and by Cherry, L.J., that the measure of the personal liability of the executors was the value of the premises; that their personal liability to this extent was not extinguished by the possession of the receiver, and that as the question of value had not been left to the jury there should be a new trial.
Held, by the Court of Appeal (The Lord Chancellor and Holmes, L.J., diss. Cherry, L.J.), reversing the judgment of the King's Bench Division, that the personal liability of an executor who has entered into possession of a testator's leasehold property is limited to the profits which he makes, or by the exercise of due care, skill, and diligence could make, out of them; and that the appointment of the receiver, and the possession by him of the premises under the authority of a Court of competent jurisdiction, precluded the executors from making any profit during the period for which the rent claimed was payable, and that they were consequently entitled to have a verdict entered for them, and further, that the action was premature, as it would be impossible at the beginning of a year to ascertain by anticipation what profits could be made out of a particular holding during the ensuing twelve months. The protection afforded to an executor by an order for the administration of the testator's estate considered and explained by the Lord Chancellor.
Action for rent under a lease, commenced by specially indorsed writ. The indorsement was as follows:—
1. By an indenture of lease, dated the 25th November, 1896, the plaintiff demised to Robert Patterson Carse, All that and those that piece or parcel of land, with the ten cottier houses thereon, situate in the townland of Burnside, barony of Upper Antrim, and county of Antrim, and also the use and enjoyment of all the beetling engines, machinery, fixtures, implements and utensils which adjoin said premises and constitute what is commonly known as the Burnside beetling engines, with the water-power rights and other rights and easements thereunto belonging, and heretofore held and enjoyed, the particulars of which machinery are specified in the schedule to the said indenture of lease annexed, to hold from the 1st November, 1895, for the term of twenty-one years, subject to the yearly rent of £140, payable yearly in advance on every 1st day of November.
2. The said Robert Patterson Carse died on the 6th January, 1910, having previously made his last will, whereof he appointed the defendants executors; and the defendants thereupon entered into possession of the said premises, and paid to the plaintiff the year's rent which had become due on the 1st November, 1909.
3. £140, being one year's rent of the said premises, became due and owing by the defendants to the plaintiff on the 1st November, 1910, and the same remains due and unpaid.
The plaintiff claims the said sum of £140.
The defendants delivered their statement of defence, which was as follows:—
1. The defendants admit the execution of the lease of the 25th November, 1896, mentioned in the statement of claim, and refer to the terms thereof when produced.
2. The defendants never entered into possession of the premises demised by said lease.
3. The said premises are now and have been since the 1st November, 1910, of no value as a source of profit as a beetling mill, for which the same were demised by the said lessee, or for any other purpose whatsoever.
4. The defendants have not since the 1st November, 1910, received any profits whatsoever out of the said premises.
5. In pursuance of an order of the county Palatine Court of Lancaster, dated the 28th February, 1910, a receiver was duly appointed over the said premises as receiver and manager of the same, and of the business carried on therein, in a suit for the administration of the estate of Robert Patterson Carse, deceased, entitled—
In the matter of the estate of Robert Patterson Carse, deceased. Between Walkington & Sons, Limited, plaintiffs, and Robert Ernest Carse, and William Hunter, defendants.
6. Since the date of the said last-mentioned order, the said premises have been, and the same now are, in the possession and under the control of the said receiver so appointed as aforesaid.
7. By reason of the appointment and possession of the said receiver, the defendants have been unable, are now, and will be, during the period in respect of which the rent claimed to be due has become payable, unable to derive any profit or advantage out of the said premises or any part thereof, or to deal in any way therewith.
8. The defendants admit the payment of the year's rent which had become due on the 1st November, 1909, but as a debt due by the said Robert Patterson Carse, in his lifetime. The defendants will submit at the trial of this action that the payment of the said rent last mentioned does not entail liability upon them by way of entry into the said premises, and that the action is not sustainable against them.
The plaintiff joined issue, and submitted that the defence did not disclose any answer to the plaintiff's claim in point of law.
The action was tried before Boyd, J., and a common jury, at the Belfast Spring Assizes, 1911. The plaintiff proved the execution of the lease, which was to the effect stated in the special endorsement on the writ of summons. It contained a clause against alienation without the consent of the lessor in writing. The plaintiff in his evidence alleged that the lessee's business was carried on by the executors till the 10th December, 1910. In February, 1910, the keys of the demised premises were offered him by the defendant, Robert E. Carse, but the plaintiff refused to take them. He said he had better offers before Carse took the premises in 1896, and could get £140 a year for them now. He was informed by letter of the 30th May of the English administration suit. He knew of the appointment of the receiver (Mr. Price). He also said in his evidence, “I cannot say how much profit Carse could make out of the premises—they are always worth the rent.”
Mr. Price, the receiver, was examined on behalf of the defendants. He said that he came over and took possession of all the property on 6th March. He appointed the defendant, Carse, manager of Whitepark (part of the property of the deceased), and Mr. Parks manager of Moorfield (another part), and of Burnside. All the management of the business was by witness, and Carse had nothing to say to it. Witness tried to sell the place in May. It was impossible to say if any profits were made out of it. One man was employed, and he lived on the premises. A small business was done at Burnside, after Carse's death. Witness, on the 6th May, sent a cheque to pay wages to Mr. Caruth, who was acting for witness as receiver when he took possession.
On cross-examination Mr. Price stated that he did not take up possession from any specific person, he did not go to Burnside or Moorfield. The money that was in bank at the death of the deceased was handed to witness by the defendant, Carse. The business was managed by a clerk. Beetlers are necessary. Carse had the key, and he got it from the worker in charge. The wages were paid by Hunter and Carse. Witness was in possession. The rent of the small house in which the man lived was deducted from his wages. It would have been necessary to beetle elsewhere if witness, as receiver, had not possession of Burnside.
The defendant, Carse, deposed that he was manager of Whitepark, and had very little to say to Burnside, which was worked as an adjunct to Moorfield. Hunter only came down once after the testator's death. The wages had to be paid to keep the business going. These were paid by the manager of Moorfield, since the 21st of February. Witness concluded his direct examination by stating: “I have taken no part in the management of the premises. No profits could have been made out of the business, and as a fact there was a loss.” Witness on cross-examination stated that money came in between the 6th January and 21st February, and witness and Mr. Hunter signed cheques drawn on the account, “Moorfield and Whitepark Co.,” which was the account his father had.
The defendant, W. Hunter, deposed that he never saw the premises. Any money that came in was disposed of by the executors.
The orders for administration, and appointing the receiver, both dated 28th February, 1910, were given in evidence.
The learned Judge asked the counsel on both sides what questions they desired to be left to the jury. The following questions were submitted to the jury:—No. 1 at the request of Harrison, K.C., on behalf of the plaintiff, and the others at the request of Chambers, K.C., on behalf of the defendants.
First, did the defendants enter into possession of the premises demised by the lease of the 25th November, 1896? Answer— “Yes.”
Second, if so, for what period did such possession continue? Answer— “6th March, 1910.”
Third, could they, during the continuance of such possession, have made any profits out of such premises? Answer— “Cannot say.”
Fourth, if so, what amount? Answer— “Cannot say.”
After the jury retired, Harrison, K.C., asked the Judge to leave to the jury the further question, “Could the defendants have made enough out of the premises to pay the rent?” and to tell them there was no evidence given by the defendants to prove that they could not, and that the onus of such proof lay upon the defendants. The learned Judge declined to give any further...
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