Kehoe v Marquess of Lansdowne

• Jurisdiction: Ireland
• Judgment Date: 25 November 1891
• Date: 25 November 1891
• Docket Number: (1889. No. 11,432.)
• Court: Court of Appeal (Ireland)

Appeal.

Before LORD ASHBOURNE, C., and FITZ GIBBON and BARRY, L.JJ.

(1889. No. 11,432.)

LANSDOWNE

and

KEHOE

Doherty v. AllmanELR 3 App. Cas. 709.

Aspdin v. Austin 5 Q. B. 671.

Hunt v. Hodges 1 Ir. Jur. 33.

Doran v. Carroll 11 Ir. Ch. R. 379.

Brooke v. KavanaghUNK 23 L. R. Ir. 97.

Agreement for a letting Trust Provision for clergyman's residence Erection of huts for evicted tenants Waste.

230 LAW REPORTS (IRELAND). (L. R., Appeal. LANSDOWNE v. KEHOE (1). 1891. Nov. 24, 25. (1889. No. 11,432.) Agreement for a letting-Trust-Provision for clergyman's residence-Erection of huts for evicted tenants-Waste. An agreement dated the 1st May, 1839, made between J. R. P. as agent for Lord L. and the Right Rev. Dr. H., Roman Catholic Bishop of Kildare, recited that Lord L. was desirous of providing a residence and holding for the Roman Catholic officiating clergyman on his Lordship's estate at L., and for that purpose to grant to the Right Rev. Dr. H. that part of the lands of L. delineated on a map at the rent of 15 7s. :-To hold for such time as there should be an officiating Roman Catholic clergyman at the Chapel of L. Leases to be perfected containing the usual clauses and covenants as were contained in the usual leases of Lord L. From 1839 till 1887 the holding was occupied by the officiating clergy at the chapel of L. The Right Rev. Dr. H. was long since dead, and his sucÂÂcessor in the office of Bishop of Kildare had never interfered in the matter. In 1887 the Rev. John M. and the Rev. Thomas N. (who were the curates of the parish of B.) occupied the holding, and officiated at L. The Rev. Thomas K. was parish priest of B., about two miles distant, where he resided, and he had paid the rent of 15 7s. for a number of years, and came 'over to L. about every fortnight. In 1887, twenty-one huts were erected on the holding, with the consent of the curates, for some tenants of Lord L., who were evicted for non-payment of rent : these huts were not built into the ground, but were substantial structures, lying on the land: Held, (affirming the decision of Porter, M.R.), that, independently of the doctrine of waste, an injunction should be granted to remove the huts, as being inconsistent with the purpose and the trust for which the holding had been let. ON the 1st May, 1839, certain articles of agreement were entered into between John Robinson Price, land agent of Henry Marquis of Lansdowne of the one part, and the Right Rev. Francis Haly, Roman Catholic Bishop of Kildare and Leighlin, of the other part, in the words following : -" Whereas the said Marquis (1) Before LORD ISHBOURNE, C., and Firs GIBBON and BARRY, L.JJ VOL. XXIX.] CHANCERY DIVISION. 231 of Lansdowne is minded and desirous to provide a suitable residence Appeal. and holding for the Roman Catholic officiating clergyman at and 1891. upon his Lordship's estate and property at Luggacurren, in the LANSDOWNE V. Queen's County, and for that purpose to grant and let unto the KEINE. said Right Rev. Francis Haly in trust for that purpose, and to his successor and successors for the like purpose, all that and those that part of the lands of Luggacurren as late in the possession of the Rev. Bartholomew Cummins, containing by estimation 10 acres 1 rood and 6 perches, late Irish plantation measure, the boundaries whereof are delineated on a map of:said:lands made by Mr. Clarges Green, land surveyor, which said premises are situate in the barony of Stradbally, in the Queen's County, at the yearly rent of 15 7s., to be paid to the said Marquis of Lansdowne and his heirs by the said Right Rev. Francis Haly, his successor and successors, by two even and equal half-yearly payments, that is to say, on every 29th September and 25th of March, in every year, the first payment thereof to be made on the 29th September next. To hold for and during such time, and at all times hereafter as there shall be and remain stationed at and upon the said hereby granted and demised lands and premises an officiating Roman Catholic clergyman at the chapel at Luggacurren, in the parish of Ballyadams, duly appointed by the Right Rev. Francis Haly, and his successor and successors, from time to time, and at all times for ever hereafter. Leases to be perfected containing the usual clauses and covenants as are conÂÂtained and mentioned in the usual leases of the said Marquis of Lansdowne, and also the usual covenants between landlord and tenant, at and upon the reasonable request of the said Right Rev. Francis Haly, and his successor and successors to the said Marquis of Lansdowne and his heirs." There was a dwelling-house upon the lands, and immediately after the execution of the agreement the then curate of the parish of Ballyadams, who acted as officiating clergyman at Luggaeurren, entered into occupation of the house and lands and continued tG reside there so long as he filled the position of curate of the parish. No lease was ever taken out in pursuance of the articles, but the said lands and house had since been continuously held for the purpose of a residence for the officiating clergyman at Luggacurren, and all the clergymen who had since the date of the agreement been curates 232 LAW REPORTS (IRELAND). Appeal. of Ballyadams had. resided. upon the said holding. The rent of 1891. 15 7& was, during the life of the Right Rev. Francis Haly, LANSDOWNE paid on his behalf and in his name by the parish priest of tv. KENDE. the said parish for the time being, and receipts were given in the name of Dr. Haly. Dr. Haly died in 1855, and there was now no personal representative to him, but since his death the rent had always been paid by the parish priest for the time being, and receipts had been given and accepted in the name of " the repreÂÂsentatives of the Right Rev. Dr. Haly." The present bishop, Dr. Lynch, had not interfered with the possession of the premises, or the payment of the rent for it. The defendants, the Rev. John Maher and the Rev. Thomas Norris were, at the date of the issue of the writ, curates of the parish of Ballyadams ; they officiated at the chapel at Luggacurren, and they were in occupation of the premises and resided there ; the Rev. Thomas Kehoe was pariah priest of Ballyadams, and he had for years paid the rent of the premises, and obtained receipts in the name of the representatives of Dr. Haly. All the interest of Henry Marquis of Lansdowne, who was owner in fee of the lands, became vested in the plaintiff in 1866. In August, kir, twenty-one cottages or huts were placed on the lands, partly of wood and partly of stone ; and these huts were erected by the direction or permission of Father Kehoe and Father Maher, the latter of whom was vice-president of the National League in the district. The builder was Daniel Carberry, and the contract for the building was made between him and Father Maher. The defendant...