Kennedy v Woods

• Jurisdiction: Ireland
• Judgment Date: 10 February 1868
• Date: 10 February 1868
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

Before MORRIS, GEORGE, JJ., and MONAHAN, C. J. Oƒ€™HAGAN, FITZGERALD, and Oƒ€™BRIEN,

KENNEDY

and

WOODS

Incorporated Society v. Richards1 Dr. & W. 258.

Asher v. WhitlockELRL. R. 1 Q. B. 1.

Ex parte Domvile14 Ir. Ch. R. 19.

See Mƒ€™Nevinƒ€™s Landed Estates Court Act, p. 295.

Statute of Limitations Effect of Landed Estates Court Conveyance of a Leasehold Interest.

KENNEDY v. WOODS (1). Statute of Limitations-Effect of Landed Estates Court Conveyance of a Leasehold Interest. A lease of land was made, dated August 30, 1838. Previous to the making of the lease, parties whom the Defendant represented had got into possession of a portion of the premises demised by it, and they retained possession to the present time. In 1861 the interest in the premises in question under the lease was sold in the Landed Estates Court to the Plaintiff. Held, first, that a conveyance by the Landed Estates Court of the interest under a lease does not warrant the title of the lessor to make the lease. Held, secondly (dissentiente Fitzgerald, J.), that, as the lessor's interest in the portion of the premises which formed the subject of the ejectment was de-feasible, by the operation of the Statute of Limitations, on the expiration of twenty years from the taking of possession by the Defendant, the conveyance of the Landed Estates Court, after the expiration of the twenty years, did not deÂÂfeat the Defendant's right. But by Fitzgerald, J., that the conveyance of the Landed Estates Court conÂÂveyed to the purchaser a good title to the " estate created by the lease;' that the lease of 1838 created a good estate for the term mentioned in it, and that the Defendant's title under the Statute of Limitations was defeated. Tins was an appeal from a decision of the Court of Exchequer. The action was one of ejectment on the title, and as the facts are fully stated in the report of the ease below ( Ir. Rep., 1 C. L., 76), the following summary will be sufficient here :-The Marquis of Lansdowne had made a lease of certain lands, on the 30th August, 1838, for a life still in being. The Defendants were then in possession of the plot of ground for which the ejectment was brought, and still remained in possession. The interest under the lease of 1838 in a portion of the premises, including this plot, was sold in the Landed Estates Court in the year 1861 to the Plaintiff, Michael Kennedy. On the trial of the ejectment there was a verdict for the Defendants ; and the Plaintiff having, pursuant to leave reserved, obtained a conditional order to have the verdict entered for him, on cause shown, the verdict for the Defendants (1) Before MORRIS, GEORGE, JJ., and MONA.TIAN, C. J. O'IlLGAN, FITZGERALD, and O'B Palles, Q. C., and S. Walker, for the Plaintiff. The 61st section of the 21 & 22 Viet., c. 72, provides that "every conveyance or assignment executed by the said judge, upon the sale of a lease, &c., shall be effectual to pass the estate created, or agreed to be created by such lease, then remaining unexpired," &c., and, " save, as aforesaid, and as hereinafter provided, disÂÂcharged from all rights, titles, &c., affecting the leasehold estate or interest." The ground of the decision in the Court of Exchequer was, that the words " the estate then remaining unexpired " meant the estate then remaining in existence. The true meaning of those words is, the estate or term created, or agreed to be created, then remaining, allowing for the efilnxion of time. We admit that the operation of the Statute of Limitations (3 & 4 Wm. 4, c. 27, s. 34) is to transfer the title, and not merely bar the remedy : Incorporated Society v. Richards (1) ; but if the time under the Statute had not begun to run until after the making of the lease of Augnst, 1838, clearly the conveyance of the Landed Estates Court would have defeated the effect of the Statute of Limitations. If A., a lessee, assign to B., and a petition be presented against A. as owner, to sell his interest in the Landed Estates Court, and the Landed Estates Court, for some reason, disregarding the assignment, or considering it invalid, convey the interest in the lease to a purchaser, it would clearly convey a parliamentary title to the purchaser, and defeat B.'s title. By the 37th section of the Act, the Court is constituted a Court for the purpose of declaring title, and, by the 54th & 55th sections, it is the duty of the Judge to give such notices as may be necessary for acertaining rights, &c., boundaries, &c., and if he thinks proper to do so, he is empowered to make an order for sale, and execute a conveyance. By the 24th rule, notice is to be given to (amongst others) adjoining owners. Here, the Defendants had acquired a title to this plot, and should have (1) 1 Dr. & W. 258. 438 THE IRISH REPORTS. Exch. Cham. been, and in fact probably were, served with such a notice ; 1867. under the 54th section the decision of the Judge as to boundaries Noy. 17-19. 1868. is final and conclusive on all persons whatsoever : and by the Feb. 10. 55th section execution of the conveyance by any person other than KENNEDY the Judge is unnecessary-. We axe prepared to contend that if a party having no interest WOODS. make a lease, and the supposed interest in that lease is sold by the Landed Estates Court, the conveyance would create a good lease. On. the true construction of the 61st section, the conveyance by the Landed Estates Court of the interest under a lease gives a Parliamentary title to the term mentioned in the lease, as it admittedly gives an indefeasible title in the ease of a conveyance of a fee-simple. The policy of the Act is the same with reference to both classes of interests. But, even if there be a distinction, what is conveyed is not the estate of the lessee then existing, but the estate created, or agreed to be created, by the lease. If the words, " term unexpired," are to be read as meaning " legal interest actually subsisting," as was held by the Court of Exchequer, a purchaser would never be safe-there might have been a surrender executed. What is the estate agreed to be created by a voidable lease ? ploNAHAN, C. J. The words, " agreed to be created," refer to the case of sales of interests held under agreements for leases, which, by the interpretation clause, are included under the word " lease."] At any rate, it would be destructive to the policy of the Act to take into consideration matters subsequent to the making of the lease. The estate of the Defendants commenced by wrong, and cannot relate back ; and the effect of the Statute of Limitations is the same as if a conveyance had been executed at the end of the twenty years. The case cannot be stronger than if Kennedy had conveyed his estate in this plot to the Defendant by a regular deed at that date, and Lord Lansdowne had also conveyed to him the reverÂÂsion. If afterwards the Landed Estates Court had conveyed Kennedy's interest to a purchaser, disregarding that deed, it would clearly defeat Kennedy's previous assignment. The Statute of Limitations cannot have a greater effect than a regular conveyance by the parties entitled to the respective interests. COMMON LAW SERIES. 439 O'Driscoll and Martin for the Defendant. Exch. Chain. The 61st section of the Landed Estates Court Act draws a clear 1867. distinction between the effects of conveyances of fee-simple estates Nov.1749' 1868. and. of interests under leases. In the former case, the conveyance Feb. 10. conveys the fee in whatever it purports to convey ; in the lat- KENNEDY ter, it only conveys the term unexpired of the estate created by WOODS. the lease. The Court has no machinery for investigating the title of reversioners, or for bringing them before the Court, except in the case of sales of leases for lives renewable for ever, when they are given express powers and directions, in case they shall think fit to convert them into fee-farm grants. In almost every sale of a lease in the Landed Estates Court there is a condition that the lessor's title shall not be inquired into. That shows the practice and opinion of the profession. The Incorporated Society v. Richards (1) and other cases show that the lapse of the period of limitation operates as " a Parliamentary conveyance " of the estate, and that relates back to the entry of the Defendants. Asher v. Whitlock (2) shows that a party, though a mere trespasser, acquires a devisable interest before the time of limitation has expired : " term unexpired " must mean the term actually in existence, as was held by the Court of Exchequer. Cur. adv. vult. MORRIS, J. The facts of this case are fully given in the case 1868. as reported in the 1st vol. of the Irish Reports, p. 76. It appears Feb. 10. that on the 15th November, a petition was presented for the sale of W. Kennedy's leasehold interest, and on the 1st June, 1861, a conveyance was executed by the Judge of the Landed Estates Court to the purchaser, Michael Kennedy. Before either of those events, it appears that, by the operation of the Statute of LimitaÂÂtions, the Defendant had an indefeasible estate, fee-simple, in the subject matter of the present controversy as against the landlord, Lord Lansdowne, the tenant, W. Kennedy, and everybody else. The question then arises : does the conveyance to a purchaser of a leasehold interest, in which is included the fee-simple estate of a third party, operate to give the purchaser an indefeasible title (1) 1 Dr. 8: W. 258. (2) L. R. 1 Q. B. 1. 440 THE IRISH REPORTS. Exch. Chain. during the continuance of the term purported to be conveyed to 1867. the fee-simple property of that third party ? The case must turn Nov. 17-19. . upon the construction of the 61st section of the Landed Estates 1868 Feb. 10. Act. In my opinion, if the conveyance to the purchaser was of a KENNEDY fee-simple estate, it would, by including the estate of a third party, no matter how erroneously...