O'Keefee v Walsh

• Jurisdiction: Ireland
• Judgment Date: 14 May 1880
• Date: 14 May 1880
• Court: Queen's Bench Division (Ireland)

Q. B. Div.

Before May, C. J., O'BRIEN and FITZGERALD, JJ.

O'KEEFEE

and

WALSH.

Doe d. Cates v. SomervilleENR 6 B. & C. 126.

Doe d. Thomas v. FieldUNK 2 Dowl. P. C. 542.

Jones d. Bagwell v. Boland 2 Jebb & S. 289.

Vance v. VanceUNKIR I. r. 5 C. L. 363.

Jones v. ShearsENR 4 Ad. & E. 832.

Rice v. M'QuaideUNKIR I. R. 9 C. L. 101.

Ward v. RyanUNKIR I. R. 10 C. L. 17.

Clayton v. BlakeyUNK 8 Term Rep. 3.

Phayre v. Fahy 1 Hayes & Jones, 128.

Thunder v. WeaverENR 3 East, 449.

Braythwayte v. HitchcockENR 10 M. & W. 494.

Doe d. Cates v. Somerville 6 B. & Cr. 126.

Doe v. SomervilleENR 6 B. & C. 126.

Lessee Daniel v. Tierney 1 Jones, 262.

Phayre v. Fahy Hay. & Jon. 128.

Daniel v. Tierney 1 Jones, 262.

Lessee Smith v. Byrne Batty's Rep. 469.

Vance v. VanceUNK Ir. R. 5 C. L. 363.

Blyth v. DennettENR 13 C. B. 178.

Landlord and tenant Yearly tenacy Implied creation of Adoption by remainderman of tenancy created by tenant for life Permissive continuance in possession.

O'KEEFFE v. WALSH (1). Landlord and tenant-Yearly tenancy-Implied creation of-Adoption by remainderman of tenancy created by tenant for life-Permissive continuance in possession. J. being tenant for life of lands, with remainder to the Plaintiff, created a yearly tenancy in the Defendant, which was subsisting on the 9th of June, 1877, when J. died. The Defendant continued in occupation, and tilled the land in. that and the following year. He had interviews with the Plaintiff after J.'s death, but no reference was made by either party to any new tenancy. No rent was demanded or paid ; but the Plaintiff did not intimate any intenÂÂtion to dispossess the Defendant, or do any act either recognising or repudiating a tenancy until some time in 1878, which was not more particularly fixed by the evidence, when the Defendant tendered the amount of rent which would have been then payable by him under the terms of his former tenancy if conÂÂtinuing ; and the Plaintiff refused to accept such rent, demanded possession, on the 31st of December, 1878, and, without serving notice to quit, commenced, on the 28th of January, 1879, an action to recover possession :- Held, by MAY, C. J., and FITZGERALD, J. (diss. O'BRiEN, J.), that there was no evidence proper to be submitted to the jury of an adoption or recognition by the Plaintiff of the pre-existing yearly tenancy in the Defendant. Doe d. Cates v. Somerville (6 B. & C. 126) observed upon; and approved of and followed by O'BRIEN, J. • Per MAY, C. J. :-" A contract or agreement of tenancy cannot be inferred from a permitted occupancy, without more." g 4-11- THESE were consolidated actions of ejectment on the title, brought by the Plaintiffs Mary F. O'Keeffe and Francis Sheehan, to recover certain lands of Fernane, in the county of Waterford, in the possession of the Defendant. It appeared that in 1861, James O'Keeffe devised these lands to trustees (of whom the Plaintiff Francis Sheehan was the survivor), upon trust for John O'Keeffe for life, with remainder to the PlainÂÂtiff Mary F. O'Keeffe (his sister) for her life, with remainders over. The testator, James O'Keeffe, died in 1862. John O'Keeffe upon his death entered into possession of the lands devised, and let (1) Before MAY, C. J., O'BRIEN and FITZGERALD, JJ. VOL. VI.] Q. B., C. P., & EX. DIVISIONS. the farm in question to the Defendant John Walsh as tenant from year to year. John O'Keeffe died on the 9th of June, 1877, when the title of the Plaintiff Mary F. O'Keeffe vested in possession. At the trial of the action, which took place before O'BRIEN, J., at the Waterford Summer Assizes, 1879, the Defendant John Walsh deposed to the effect that, a few days after John O'Keeffe's death, he had seen the Plaintiff Mary F. O'Keeffe on several occaÂÂsions, and that she did not, until the month of December, 1878, express any intention of dispossessing him of the lands so held by him ; that he tilled some of the lands in 1877, and also in 1878, and had crops and stock on them. On cross-examination be stated, that after John O'Keeffe's death, and some time in 1878, he told the Plaintiff Sheehan (who was manager of the bank in Dungarvan at which the Defendant kept his account), that he would pay whatever rent was due to the Plaintiff Mary O'Keeffe, and gave to Sheehan a blank cheque signed by him, to be filled up with the amount due. The next time he called at the bank Sheehan told him that Mr. O'Connell, the land-agent of the Plaintiff, would not take it, and he was never charged with the cheque. The Defendant gave in evidence, subject to objection by the Plaintiffs, a petition filed in the Landed Estates Court in 1873, by John O'Keeffe, praying for the sale of his life estate in these lands, and proved that the present Plaintiffs had entered appearances in that Matter ; also a draft rental in which the Defendant was entered as yearly tenant. It also appeared that the Defendant had in the year 1870 lent the Defendant Mary O'Keeffe a sum of 100, but there was no evidence that the Defendant considered that he was retaining rent payable by him in part payment of this sum, or that the Plaintiff recognised such an arrangement. The Plaintiffs' counsel requested the learned Judge to direct a verdict for them. The counsel for the Defendant, on the other hand, submitted that there was evidence that the Plaintiffs had recognised and adopted the yearly tenancy of the Defendant, and that, inasmuch as no notice to quit had been served, the Plaintiffs must be non-suited or have a verdict against them ; and at the request of counsel for the Defendant, His LORDSHIP left the question to the jury, Whether they believed that the Plaintiffs, or either of them, 2 E 2 350 LAW REPORTS (IRELAND). [L. R. I. Q. B. Div. by their acts and conduct recognised Defendant's tenancy in the 1880. lands as a tenancy from year to year continuing beyond the death O'KELFFE of John O'Keeffe? The jury found that the Plaintiff Mary F. V. WALSH. O'Keeffe had by her acts and conduct recognised such tenancy-and His LORDSHIP then directed a verdict for the Defendant, reservÂÂing leave to the Plaintiffs to move to have a verdict entered for them in case he should have so directed-and a conditional order having been obtained accordingly :- Ryan, Q. C., and J. G. Gibson, for the Defendant, showed cause :- From the death of John O'Keeffe in June, 1877, until the end of the following year 1879, the Defendant was suffered to remain in undisturbed possession ; and during this period he was openly assuming to act as tenant by tilling the farm, to the knowledge of the Plaintiff Mary F. O'Keeffe. The refusal of rent, which is described as being some time in 1878, was the first indication that it was intended to repudiate his tenancy. But apart from the payment of rent, undisturbed possession, for a period of time such as was here allowed to elapse after the accrual of the remainder-man's title, is evidence to go to the jury of adoption and recogniÂÂtion by the remainderman of a tenancy created by his predecessor. Doe d. Cates v. Somerville (1) is a distinct authority that such an inference of adoption and recognition may be drawn from conÂÂtinued undisturbed. possession by the former tenant without any positive act by the new owner. There the inference was drawn by the Court on a case stated. The question was raised upon an ejectment to recover glebe lands, where the occupiers, who had been tenants from year to year under a previous rector and vicar, were allowed to remain in possession by his successor for eight or nine months ; and it was held that they could not be dispossessed without notice to quit, although no rent had been received from them after the change of incumbents. In delivering judgment, Abbott, C. J., distinctly states as the ground of the decision, that, after the lapse of time, the presumption arose that the new incumÂÂbent had assented to a continuance of the tenancies on the same (1) 6 B. & C. 126. VoLIT I. j Q. B., C.P., & DIVISIONS. terms as before. In this case there has been a continuance of possession for even a longer period without demand of possession by the new owner, or intimation of her intention to evict. The Plaintiff Mary F. O'Keeffe was not examined to displace the presumption which might fairly arise from her conduct, that, for a time at least after her brother's death, she intended to continue the tenancy. In .Doe d. Thomas v. Field (1) the creation of it yearly tenancy was presumed, from a lessee being allowed to remain in possession for a year after the expiration of his lease. Similar questions were held to have been properly left to the jury in Jones d. Bagwell v. Boland (2), where the jury negatived the conÂÂtinuance of the tenancy : Vance v. Vance (3) ; Jones v. Shears (4). See also Rice v. 111'Quaide (5) ; Ward v. Ryan (6) ; Clayton v. Blakey (7). Here the jury have found that the yearly tenancy created by John O'Keeffe was adopted by the present equitable owner; and notice to quit not having been served, the Defendant is entitled to retain the verdict. Under any circumstances there was a tenancy at will. _Hemphill, Q. C., Purcell, Q. C., and Anderson, for the Plain-tiff: No rent was demanded or received after John O'Keeffe's death. The only positive acts of the Plaintiff Mary F. O'Keeffe were acts repudiating the existence of any supposed tenancy in the DefenÂÂdant-by refusing to accept the rent when tendered for the first time, by subsequently demanding possession, and by bringing the present action when possession was withheld. If mere continuance in possession under such circumstances could afford legitimate grounds for inferring the creation of a new tenancy, it might be contended that where the possession was for even a still shorter period than here, the question should be left to the jury, whose tendency would be in favour of the existence of the tenancy ; and a dangerous uncertainty as to the relation of landlord and tenant would be...