M'Areavy v Hannan

• Jurisdiction: Ireland
• Judgment Date: 15 February 1862
• Date: 15 February 1862
• Court: Exchequer (Ireland)

Exchequer.

M'AREAVY

and

HANNAN.

Morrison v. M'AnaspieIR 2 Ir. Com. Law Rep. 366.

Barton v. MajorIR 2 Ir. Com. Law Rep. 28.

Towler v. ChattertonENR 6 Bing. 258.

Re Simson's Trusts 1 John. & H. 89.

Wright v. HaleENR 6 H. & N. 227.

Pargeter v. Harris 7 Q. B. 708.

Morrison v. M'AnaspieIR 2 Ir. Com. Law Rep. 366.

Marsh v. HigginsENR 9 c. B. 551.

Jackson v. Woolley 8 Ell. & B1. 784.

Moon v. DurdenENR 2 Exch. 22.

Thompson v. LackENR 3 C. B. 540.

Page v. BennettENR 2 Giff. 117.

Crofts v. MiddletonENR 2 K. & J. 194.

Parke v. M'LoughlinIR 1 Ir. Com. Law Rep. 186.

Cuthbertson v. IrvingENR 4 H. & N. 742.

6 Jur., N. S., 1211; S. C., 29 Law Jour., N. S., Exch., 485.

Pargeter v. Harris 7 Q. B. 708.

Sacheveral v. FroggartENR 2 Saund. 271; more fully reported in 1 Ven. 181.]

Moon v. DurdenENR 2 Exch. 22.

Hitchcock v. Way 6 Ad. & Ell. 943.

Moore v. PhillipsENR 7 M. & W. 536.

Thompson v. LackENR 3 C. B. 540.

Williams v. SmithENR 4 H. & N. 559; S. C., 28 Law Jour., Exch., 127; 5 Jur., N. S., 1107.

Jackson v. Woolley 8 Ell. & Bl. 784.

Thompson v. Waithman 3 Dr. 628.

Towler v. ChattertonENR 6 Bing. 258.

H. •T. 1862. Exchequer. O'CONNOR V. - STEPHENS. 70 COMMON LAW REPORTS. reasonable indulgence to his debtor, for the purpose of settling his affairs, or of altogether preventing any such indulgence being ever given. Either of these results is much to be deprecated; and it would seem that all reasonable protection will be given, and all necessary facilities for the transfer of chattels real will be secured, by the other provisions of this statute (23 & 24 Vic., c. 38), without the proviso above referred to. M. T. 1861. Nov. 15, 21, 22. H. T. 1862. Feb. 15. M'AREAVY v. HANNAN.* . A and B, by EJECTMENT for non-payment of rent, to recover the possession of the lease, dated the 13th of premises known as No. 109 Cromac-street, in the town of Belfast, January 1831, reciting that A had mortÂÂgaged to B the premises included in the lease, demised certain preÂÂmises to C. The rent was reserved to A, the mortgagor, and also the powers of disÂÂtress and reÂÂentry. A and B, in the year 1836, assigned their interest to D, who brought ejectÂÂment for nonÂÂpayment of rent.-Held, that C was not estopped from disputing the title of A. Held also, that, indeÂÂpendently of the Landlord and Tenant Law Amendment Act, ment of rent. Held also, per FITZGERALD, HUGHES and DEASY, BB., that the relation of landlord and tenant, within the meaning of the 3rd section of the Landlord and Tenant Law Amendment Act (23 & 24 Vic., c. 154), did not subsist between D and C. Per FIGOT, C. B.-The 3rd section of that statute is not retrospective. * Before the Full Court. heirs and assigns, all that field near Cromac, containing, by estiÂÂmation, Ia. 3r. 30p., plantation measure, or thereabouts, be the same more or less, then in the possession of the said Bryan Cooney ; bounded on the east by a field then in the possession of John Holmes Houston ; on the west by Cromac-street ; on the north by the Spa Loming, and on the south by Cromac dock or basin, being part of the premises formerly demised to Bryan MulÂÂholland, with the appurtenances ; to hold unto the said Bryan Cooney, his heirs and assigns, during the lives of the several cestui que vies therein named, and the lives and life of the surÂÂvivors and survivor, and such other lives as should be added thereto, by virtue of the covenant for perpetual renewal therein contained, subject to the payment of the yearly rent of 16. 12s. 4d., and 1. 6s. Od. renewal fine ; and reciting that the said Bryan Cooney did afterwards grant the said piece or parcel of ground, tenement and premises, with others, in mortgage, unto the said William Wauchope, his heirs, executors, administrators and assigns, subject to redemption ; and reciting that the said Patrick Murray had come to an agreement with the said Bryan Cooney for a lease for three lives renewable for ever, of a certain portion of the premises demised by said lease, which portion was thereinafter particularly mentioned and described ; and that the said William Wauchope, at the instance and request of the said B. Cooney, had agreed to become a granting party to said indenture-said deed witnessed that the said William Wauchope and Bryan Cooney, according to their respective estates and interests, granted and demised to Patrick Murray, his heirs and assigns, all that and those that piece or parcel of building ground situate on the west side of Cromac-street, containing, in front of said street, sixteen and a-half feet, extending backward, from front to rere, fifty-seven feet, be the said admeasurements, or either of them, more or less ; bounded on the east by Cromac-street ; on the west by building, the proÂÂperty of Alexander Williamson ; on the north by part of a field belonging to Mr. Joy, and, on the south by building ground, the property of the said Bryan Cooney, with the appurtenances, all 72 COMMON LAW REPORTS. situate in Cromac-street, in the town of Belfast : to hold for three lives, and the lives and life of the 'survivors and survivor, and such other life and lives as should be added, pursuant to the covenant for perpetual renewal ; yielding and paying unto the said Bryan Cooney the yearly rent of 6, on every 1st of May and 1st of November ; and also yielding and paying unto the said Bryan Cooney, his heirs and assigns, 1. 5s. Od. renewal fine, and 1 upon the death of Patrick Murray, and every other chief tenant dying in possession, in lieu of an heriot. The lease then contained a clause of distress and re-entry to B. Cooney, and covenants by Patrick Murray, with William Wauchope and B. Cooney, to pay the rent to B. Cooney, and to keep in repair ; and joint and several covenants by William Wauchope and B. Cooney, for the renewal of the lease, and a covenant by B. Cooney for quiet enjoyment. The lease of the 13th of January 1831 was assigned to the defendant, by a deed of the 7th of November 1831. By deed, dated the 26th of November 1836, made between the said William Wauchope, of the first part, Bryan Cooney, of the second part, and John McAuley, of the third part, reciting a lease from the Marquis of Donegal to Bryan Cooney, of a piece of ground on the west side of Cromac-street, and dated the 12th of June 1829, and a mortgage thereof to William Wauchope, the said William Wauchope demised, and the said Bryan Cooney conÂÂfirmed, unto the said John McAuley, his heirs and assigns, all that piece of ground situate on the west side of Cromac-street, in the town of Belfast, containing, in front next Cromac-street, 173 feet, or thereabouts, and extending backwards ninety-two feet ; bounded on the north by John G-affikin's holding ; on the south by the paper-mill water ; on the east by Cromac-street, and on the west by a field in the possession of Henry Joy, with the appurÂÂtenances ; " excepting and always reserving all such matters and "things as are excepted and reserved in and by the original lease " by virtue of which the said Bryan Cooney holds the same ; and " also excepting and reserving all such matters, grants, leases, as " are heretofore made by the said Bryan Cooney to the different COMMON 14W REPORTS. 73 to hold for the same lives as in the original lease, with covenant for perpetual renewal ; yielding and paying to the said Bryan Cooney the yearly rent of 55, and 1. 5s. Od. renewal fine, and 1 as an heriot, upon the death of every chief tenant. The lease then contained clauses of distress and re-entry, and the usual covenants, all reserved to and made with Bryan Cooney. John M'Auley died in the year 1840 ; and the plaintiff John M'Areavy was his executor, and the other plaintiff Jelin M'Auley was his heir-at-law. The plaintiffs having closed their case with this evidence, CounÂÂsel for the defendant called for a nonsuit, or a direction, upon the ground that the lease of the 13th of January 1831 reserved the rent to the mortgagor, and not to the mortgagee, and that the rent was thereby severed from the reversion, and became incapable of being made the subject of an action of ejectment for non-payment of rent ; and also because, neither under said lease, nor under the deed of the 26th of November 1836, did the relation of landlord and tenant exist...