Kennedy, Tenant; M'Loughlin, Landlord

• Jurisdiction: Ireland
• Judgment Date: 17 December 1897
• Date: 17 December 1897
• Court: Court of Appeal (Ireland)

Kennedy

Tenant

and

M'Loughlin

Landlord (1).

Appeal.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1898.

Landlord and tenant — Land Acts, 1881 and 1896 — Bona fide occupation — Assignment of portion of holding — Undivided share — Determination of tenancy without resumption of possession — Partition — Originating notice — Amendment.

A and B were tenants in common in fee of certain lands. B being in occupation of the whole, and holding A's moiety under a yearly tenancy at a rent, by deed dated the 6th February, 1885, conveyed all his interest in the lands to C, i.e. the moiety owned in fee, and his tenant-right in the other moiety. It was agreed between B and C, that C, on getting possession, should give up a certain small portion of the lands for the site of a public building, and accordingly, by deed dated the 15th December, 1886, B and C, without the consent of A, conveyed a small plot of the ground to trustees for this purpose. A civil bill decree for possession by A of his undivided moiety, grounded on notice to quit, was obtained by him, but possession was not taken under it, and C, in 1894, served an originating notice to have a fair rent fixed in respect of A's moiety, and also obtained a decree for partition, which was carried out by deed, the plot conveyed by the deed of the 15th December, 1886, being excluded from the share allotted to A. B obtained an order of the Land Commission, amending his originating notice by substituting the divided for the undivided moiety.

Held (reversing the decision of the Land Commission), that C was entitled to have a fair rent fixed.

In and prior to 1885, John M'Loughlin and William Simpson were tenants in common in fee of portion of the lands of Killaloo, in the county of Londonderry, containing 35a. 2r. William Simpson was tenant to John M'Loughlin of his moiety of these lands under a yearly tenancy, at a rent of £11 12s. 6d., and was thus in occupation of the entire 35¹/₂ acres. By indenture dated the 6th February, 1885, William Simpson conveyed all his interest in the lands to George Kennedy, i.e. the moiety owned in fee, and what was described as his tenant-right interest in the other moiety. About the same time an arrangement was come

to between Simpson and Kennedy, that after Kennedy had got possession of these lands he should give up a certain small portion for the site of an Orange Hall. To carry out this arrangement, by indenture dated the 15th December, 1886, George Kennedy and William Simpson conveyed in fee-simple to Samuel Todd and others, as trustees of the Killaloo Orange Hall, a plot of ground, portion of 35¹/₂ acres. The deed operated to convey one moiety of the site in fee, and as to the other undivided moiety of the site, it conveyed a tenancy from year to year, but no consent to that sub-division or assignment was obtained from McLoughlin, who was the landlord of one moiety. On the 28th June, 1892, McLoughlin served a notice on the parties, cautioning them against proceeding with the erection of the Orange Hall, and threatening them with a notice to quit, to recover his undivided moiety of the lands. No attention was paid to this, and an ejectment founded on a notice to quit was brought by M'Loughlin. The ejectment was heard by the Recorder of Londonderry, who gave a decree for possession. An appeal was taken from that decree to the Judge of Assize, when Johnson, J., affirmed the decree, but ordered execution to be suspended upon certain terms, and amongst others that George Kennedy should, on or before the 16th April, 1894, apply to fix a fair rent in respect of the subject-matter of the ejectment, and prosecute such application with diligence. Before the time expired Kennedy served an originating notice to fix a fair rent of one undivided moiety of the 35a. 2r. of Killaloo, held by him as tenant from year to year, at the rent of £11 12s. 6d., and also instituted proceedings by equity civil bill for a partition of his interest in the holding of 35 acres between him and M'Loughlin. The fair rent application was adjourned from time to time. The civil bill for partition came on before the Recorder of Londonderry, and was dismissed. From that decree an appeal was taken to the Judge of Assize (Murphy, J.), who made an order that there should be a partition of the premises, and that in the partition the Orange Hall should be allotted as part of the share of Kennedy, by whose directions, or with whose consent, it had been erected. A partition was afterwards had, which carried out the order of the Judge of Assize, and allotted to Mr. Kennedy a portion of these lands with the Orange Hall on them. The case then came before a Sub-Commission to fix a fair rent, and the originating notice was dismissed by the Sub-Commission, on the ground that the tenant was not in occupation of the holding.

The landlord died, and an application was made to the Land Commission to continue the proceedings in the name of the representatives of the original landlord, Thomas M'Loughlin, and Joseph Clark. At the same time an application was made to the Land Commission to amend the description of the lands in the holding, by describing them as containing 14a. 3r. 1p., instead of as an undivided moiety of 35a. 2r., and some evidence was given to show that there had been a valid partition, and the Land Commission made the order; but the Land Commission were in entire ignorance of all this litigation which had been going on between the parties, and, as was stated by Bewley, J., in his judgment, if that litigation had been brought to their notice, they would not have made the order without full notice to the other side.

On appeal, the Land Commission, on the 10th July, 1897, affirmed the decision of the Sub-Commission, and from that judgment the defendant appealed.

Drummond, Q.C, and A. Todd, for the appellant:—

If this were like Cummins v. St. Leger (1), where a man was co-tenant along with another, the tenant is entitled now to have a fair rent fixed. Throughout this transaction the tenant acted bona fide; when he took the farm he was under an agreement to give portion of it for the site of an Orange Hall. The entire proceedings were carried on simply for the purpose of having the case rightly before the Land Commission. Again, this subletting was trivial only, some 45 feet by 40 feet, and is protected by sect. 7 of the Land Law Act, 1887. The Judge at the Assizes had jurisdiction to put a stay on execution: Montgomery v. O'Hara (2). It is only on resumption by the landlord that the tenancy could be put an end to. The judgment in ejectment did not determine the tenancy; sect. 50, sub-sect. 2 of the Land Act,

Wylie, Q.C., and Henry, Q.C., for the respondent:—

The time of serving the originating notice is the date for ascertaining the status of the tenant. The tenant was not the tenant of a holding within the Land Act, and therefore, after the notice to quit had run out, an ejectment had put an end to the tenancy: Cummins v. St. Leger (1). The stay of execution has no effect once the notice to...