O' Kane v Burns

Judgment Date22 June 1896
CourtQueen's Bench Division (Ireland)
Date22 June 1896
Burns (1).














Landlord and tenant — Land Law (Ireland) Act, 1881, ss. 3 and 5 — Subletting by judicial tenant — Void lease — Liability to rent or in use and occupation.

A person who holds lands under a judicial tenancy cannot sublet them without the consent of his landlord; and if he purports to subdemise them by lease without such consent, the lease is void, and the person to whom the lease is made is not liable to be sued for the rent thereby reserved, either as rent or in use and occupation.

Appeal by the plaintiff from an order of the Queen's Bench Division, dated 11th May, 1896, refusing with costs the plaintiff's motion pursuant to leave reserved at the trial for judgment in the action, and entering judgment with costs for the defendant therein.

The action was brought to recover the sum of £136 10s. for rent due by the defendant to plaintiff as administratrix of the will annexed of James Wilson Bradley under a lease dated the 5th December, 1892, made by James Wilson Bradley to the defendant, and reserving a rent of £78 per annum, and in the alternative to

recover the said sum of £136 10s. for the use and occupation of the demised lands at a rent of £78 per annum.

The statement of claim which gave the particulars of the said lease and of the rent claimed in greater detail was read by the Lord Chancellor in giving judgment.

The lessor in the said lease, James Wilson Bradley, held the lands which he purported to demise thereby under a judicial tenancy, and the defendant pleaded amongst other defences that he would rely upon the provisions of the 3rd and Sth sections of the Land Law (Ireland) Act, 1881.

The action was tried at Londonderry before Lord Justice Barry on the 27th March, 1896. It appeared from the Judge's certificate that at the trial it was consented and agreed by counsel on both sides that there should be no jury, and that for the purposes of the action the facts should be taken as follows:—“One James Wilson Bradley was judicial tenant of the lands in question. He by lease dated 5th December, 1892, demised or purported to demise the said lands to the defendant for six years from 1st October, 1892. The defendant went into possession and paid to the said James Wilson Bradley the half year's rent due from 1st October, 1892. The said James Wilson Bradley died in August, 1893. The plaintiff is his administratrix with the will annexed. There is now unpaid of the said alleged rent the sum of £136 10s. from 1st April, 1893, to 1st January, 1895. The plaintiff as such administratrix sues the defendant for this sum, claiming it under the said lease or in the alternative for use and occupation. The defendant relies on the 3rd and 5th sections of the Land Law (Ireland) Act. The defendant claims credit for £25 head rent paid by him, which is admitted. The defendant continued in possession until 1st January, 1895; either party to be at liberty to move the Divisional Court for judgment.”

The plaintiff, pursuant to the leave so reserved, moved the Divisional Court for judgment; but that Court refused the application, and made the order now appealed from.

Drummond Q.C., and Gallagher, for the appellant:—

(a) The Statute Law Revision Act, 1874, has repealed the 7 Wm. 4, c. 29. The lease was therefore not illegal.

(b) The lease may be illegal, but the possession of the defendant was quite legal: Ryan v. Byrne (1). He was in possession of the premises as licensee of Bradley: Littleton v. Macnamara (2); he was therefore liable in use and...

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6 cases
  • O'Regan v White
    • Ireland
    • Court of Appeal (Ireland)
    • 11 February 1919
    ...(5) 10 I. L. T. R. 98. (6) [1915] 1 K. B. 1. (1) I. R. 5 Eq. 613. (2) L. R. 1 Q. B. 1. (3) [1907] A. C. 73. (1) [1896] 2 I. R. 273. (2) [1897] 2 I. R. 591. (3) [1900] 2 I. R. 359. (4) [1903] 2 I. R. 417. (5) [1896] 2 I. R. 273. (6) 20 L. R. Ir. 341. (7) [1906] 1 I. R. 20. (8) 8 Ir. Ch. R. 3......
  • Carew v Jackman
    • Ireland
    • High Court
    • 15 December 1966
    ...can give consent with retrospective effect. For these reasons I dismiss these appeals and confirm the orders of the Circuit Judge. (1) [1897] 2 I. R. 591. (2) [1958] Ir. Jur. Rep. 75. (3) [1900] 2 I. R. 359, 370. (4) [1947] Ir. Jur. Rep. 17. (1) [1958] Ir. Jur. Rep. 75. (2) [1897] 2 I. R. 5......
  • Patrick Farrell v Ellen Donnelly, John Donnelly, Patrick Donnelly, and Ellen Donnelly
    • Ireland
    • Court of Appeal (Ireland)
    • 4 November 1912
    ...RoulstonIR [1909] 1 I. R. 306. Kennelly v. EnrightUNK 8 L. R. Ir. 33. National Bank v. DiffelyIR [1910] 1 I. R. 271. O'Kane v. BurnsIR [1897] 2 I. R. 591. Pryor v. PryorELR L. R. 19 Eq. 595, per Bacon, V.-C., p. 598. Roper v. RoperDLTR 41 Ir. L. T. R. 231. Sinclair v. JamesELR [1894] 3 Ch. ......
  • Re Mary Geoghegan
    • Ireland
    • King's Bench Division (Ireland)
    • 22 January 1918
    ......characterized as a reductio ad latrocinium: Doody v. Nolan ( 3 ). In O'Kane v. Burns ( 4 ), FitzGibbon L.J. commented very strongly on the drastic effect of the previous decisions dealing with these restrictive provisions of ......
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