Keating v Mulcahy

CourtSupreme Court (Irish Free State)
Judgment Date03 February 1926
Docket Number(1925. No. 14,399.)
Date03 February 1926

Supreme Court.

(1925. No. 14,399.)
Keating v. Mulcahy.
PATRICK MULCAHY and Others, Defendants (1)

Practice - Writ - Special endorsement - Action for recovery of land - Tenancy"duly determined by notice to quit" - Notice to quit given under provision in letting agreement - Order III, Rule 6 (F) - Scope of the Rule - Sufficiency of special endorsement - Motion for final judgment - Order XIV, Rule 1 - To what cases applicable - 1 Geo. 4, c. 87, sect. 1 - Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), sect. 213 -Landlord and Tenant Law Amendment (Ireland) Act, 1860 (23 & 24Vict. c. 154), sect. 75.

Appeal by the defendants from an order made by O'Shaughnessy J. on December 4th, 1925, giving the plaintiffs liberty to sign final judgment in an action for the recovery of possession of premises for overholding against the defendants and against Eileen Mary Mulcahy and Mary O'Neill Walshe, who had entered appearances. The defendants also appealed against the order of O'Shaughnessy J. refusing their cross-application to transfer the action to the Circuit Court at Waterford.

The plaintiffs' claim, as specially endorsed upon the writ of summons, was as follows:—

"Statement of Claim.

The plaintiffs' claim is to recover possession of the dwelling-house known as Maypark House, with the conservatory, garage, and other out-offices, and the three gardens known as the Rock Garden, Rose Garden, and Walled-in Garden thereunto belonging, together with the pleasure grounds also thereunto belonging and lying to the south and east sides of the avenue leading from the road to the said dwelling-house and the pleasure grounds adjoining the said dwelling-house from the end of the said avenue and lying within the existing iron railings as far as the large garden, all which said premises are situate in the townland of Ballinakill, Barony of Gaultier, and County of Waterford, which said premises were held by the late Michael Francis Mulcahy under an agreement dated the 23rd day of April, 1924, from Lady Margaret Aimée Goff as a yearly tenant from the 1st day of May, 1924, at the yearly rent of £60, and which tenancy was duly determined by a notice to quit served upon the said defendants as executors of the said Michael Francis Mulcahy, expiring on the 1st day of November, 1925.

The plaintiffs sue as assignees of the said Lady Margaret Aimée Goff under an indenture dated 14th day of September, 1925, of certain leasehold premises, including the premises above described, notice of which has been given to the defendants. The defendants are sued as the executors of the will of the said Michael Francis Mulcahy, deceased."

The following statement of the facts is taken from the judgment of the Chief Justice:—

"The tenancy agreement of the 23rd April, 1924, referred to in the statement of claim is in evidence. It was thereby agreed that Lady Margaret Goff should let, and Michael Francis Mulcahy should take, 'in yearly tenancy from the 1st day of May, 1924,' the hereditaments and premises mentioned in the statement of claim at the yearly rent of £60, payable by half-yearly payments on the 1st day of May and 1st day of November, the first of such payments to be made on the first day of November, 1924. The eighth clause of the agreement reads as follows:—

'The tenancy hereby created shall be determinable by either party hereto on any first day of May or first day of November by giving to the other of them at least six calendar months' previous notice in writing of an intention to determine the same.'

Mr. Michael Francis Mulcahy died on the 1st June, 1924, having by his will appointed the defendants, Patrick Mulcahy and Samuel Le Bas, to be his executors and probate of the will was, on the 9th January, 1925, duly granted to them.

The tenancy was determined on the 1st November, 1925, by the following notice to quit, in writing, dated the 9th February, 1925:—

'To Patrick Mulcahy, of Cahir, County Tipperary, hotel proprietor, and Samuel Le Bas, of Mount Bellew, County Galway, Bank Official, executors of Michael F. Mulcahy, late of Maypark, County Waterford, retired bank agent, deceased.

I, the undersigned, Lady Margaret Aimée Goff, of Glenville, in the County of Waterford, widow, hereby give you notice to quit and deliver up on the first day of November next the actual quiet and peaceable possession of all that and those the dwelling-house known as Maypark House, with the conservatory, garage, out-offices, gardens, pleasure grounds, and all other the premises situate in the townland of Ballynakill Barony of Gaultier, and County of Waterford, held by you as such executors as aforesaid from me in yearly tenancy under an agreement dated the twenty-third day of April, one thousand nine hundred and twenty-four, and made between me of the one part and the said Michael F. Mulcahy of the other part.

The premises let to the late Mr. Mulcahy formed part of a larger property held by Lady Margaret Goff. She sold the entire property in the year 1925 to the plaintiffs, to whom she assigned the premises by deed dated the 14th September, 1925, subject to the tenancy then still unexpired. Notice of the assignment was given to the defendants.

The defendants failed to deliver up possession of the premises pursuant to the notice to quit. Accordingly, on the 4th November, 1925, the writ of summons in the present action was issued.

Since the death of Michael Francis Mulcahy, his widow, Mrs. Eileen Mary Mulcahy, and her mother, Mrs. Mary O'Neill Walshe, have continued to live in Maypark House. They have entered appearances in the action."

It was alleged by the defendants that during the negotiations for the tenancy an option to purchase the whole property held under the lease was verbally given on behalf of Lady Goff. Mrs. Mulcahy stated in her affidavit that she told Mr. M'Coy, solicitor for Lady Goff, that her husband wished to have an opportunity to buy the property later on, and that Mr. M'Coy replied that "as tenant" her husband "would have the option, and that we need not be uneasy."

By an agreement in writing, G. agreed to let and M. to take "in yearly tenancy from the 1st day of May, 1924," certain premises at the yearly rent of £60, payable by half-yearly payments on 1st day of May and 1st day of November, and the agreement provided that the tenancy should be determinable by either party on any 1st day of May or 1st day of November by giving to the other party at least six calendar months' previous notice in writing to determine the tenancy. G. served notice to quit, determining the tenancy on November 1st, 1925. G. assigned her interest in the premises (subject to the tenancy) to the plaintiffs. M. died in 1924, and his executors having failed to deliver up possession of the premises on the expiration of the notice to quit, the plaintiffs issued a specially endorsed writ claiming possession, and moved for final judgment. The special endorsement referred to the contract of tenancy by date, parties, and subject-matter; and to the notice to quit by stating that it determined the tenancy, the date of its expiration, and the parties upon whom it was served.

Held by the Supreme Court, affirming O'Shaughnessy J., that, although the notice to quit was given by virtue of the special provision in the contract of tenancy, the writ could be specially endorsed.

Scope of Order III, Rule 6 (F), considered.

Arden v. Boyce,ELR [1894] 1 Q. B. 796; Gleeson v. Keown,DLTR32 Ir.L.T.R. 150;and Stokes v. Tracey,IR[1920] 2 I.R. 444, discussed and explained.

Held, also, that the special endorsement was sufficient, as it was not necessary to set out the provision in the contract of tenancy under which the notice to quit was given; and that the reference to the notice to quit in the special endorsement incorporated it therein.

M'Donnell v. Kavanagh, 4 N.I.J.R. 189, followed.

Held, further, that final judgment ought to be granted, as no facts were disclosed which, if proved, would afford any defence to the action—a defence based in substance upon an alleged verbal option to purchase the premises being held by the Court to be unsustainable.

Per Kennedy C.J.: A tenancy determined by a notice to quit complying with the requirements prescribed by the contract as to length of notice, time for expiration, and such matters, but not waiting upon the happening of a contingency as a condition precedent to its service, is within Order III, Rule 6 (F), as to special endorsement; and, if the determination be not in substance a forfeiture (except the case of ejectment for non-payment of rent), may be the subject of an application for summary judgment under Order XIV, Rule 1.

Per FitzGibbon J.: In every case in which a tenancy has been duly determined by a notice to quit, the landlord may specially endorse his writ under Order III, Rule 6. If he moves for summary judgment under Order XIV, Rule 1, his right to succeed will depend upon whether there is a defence on the merits, or there are disputed questions of fact, or difficult questions of law, such as have been always held in this country to entitle a party to defend the action in the ordinary way, notwithstanding the fact that the writ has been specially endorsed. The fact of a forfeiture and the occurrence of a contingency or condition precedent are instances of such questions, and if, in the case before the Court, there was any evidence of the existence of the alleged option to purchase, that would also disentitle the plaintiffs to summary judgment.

Kennedy C.J., having stated the facts as set out above, proceeded:—

It has been argued on behalf of the defendants, the appellants that this is not a case within the rule under which

summary judgment may be given, and, alternatively, that it is not a case in which the Court ought to give summary judgment.

Mr. Wood and Mr. Shannon have, with great vigour and ingenuity, pressed upon us that the Court cannot in...

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