M'Carthy v Barry

• Jurisdiction: Ireland
• Judgment Date: 27 April 1859
• Date: 27 April 1859
• Court: Rolls Court (Ireland)

Rolls.

M'CARTHY

and

BARRY.

Broom v. Broom3 M. & K. 443.

Lyster v. Dolland1 Ves. jun. 431.

Elliott v. Brown3 Swanst. 489.

Frewen v. Relfe2 Br. C. C. 220.

Blograve v. Winder2 Ves. jun. 634.

Jackson v. Jackson9 Ves. 596.

Musgrave v. DashwoodENR2 Vern. 63.

Pulteney v. Warren.6 Ves. 77.

Drury v. DruryRep. in Chan. 26.

Dean v. WadeRep. in Chan. 26.

Duke of Leeds v. Powell1 Ves. 171.

The Duke of Leeds v. The Corporation of New Radnor2 Br. C. C. 338, 318.

Henderson v. EasonENR2 Phil. 308.

Denys v. Shuckburgh4 Y. & Col., Ex., 42.

Swatman v. AmblerENR8 Exch. 72.

Thom. Co. Lit., vol. 1, p. 789, note T.

Twort v. Twort16 Ves. 132.

Pany v. MartinENR2 Phil. 762.

Phillips v. PhillipsENR9 Hare, 471.

Padwick v. HurstENR18 Beav. 577.

M' Mahon v. BurchellENR2 Phil. 134.

Cremen v. HawkesUNK8 Ir. Eq. Rep. 153.

Lord St. LeonardsUNK8 Ir. Eq. Rep. 153; S. C., 2 J. & L. 679.

Brady v. FitzgeraldUNK12 Ir. Eq. Rep. 273.

CHANCERY REPORTS. 377 1859. Rolls. M'CARTHY v. BARRY::. Jan. 21,'28. April 27. Br lease dated. the 27th of September 1830, Daniel O'Connell One of two tenants in and Maurice O'Connell demised to Patrick ,Trant and James common, un- Barry, their heirs, &c., part of the lands of Carhen, in the county der a lease, by agreement in of Kerry, and the right to a stream and watercourse called the writing let his portion to his Cahir river, for three lives and 999 years ; and it was therebyco-tenant, at a declared and agreed upon, that the said lessees should hold as rent and an action for use tenants in common, and not as joint tenants. and occupation having been Shortly after the lease was executed, the lessees entered into brought by his representatives possession, and erected corn and flour mills on the lands, and entered after his death, they were non- into a partnership as millers and bakers, which partnership con- suited, on the supposition tinned until 1839, when it was dissolved ; and an agreement was that the lease created a joint entered into by which •Patrick Trant agreed to pay a rent of 50 tenancy, a clause in the a-year, for .his half of the mill lands and bakery. Patrick Trant lease that it should create carried on "the business until the 11th of December 1843, when a tenancy in common not an :agreement in writing was made, whereby it was agreed that having been brought under Trant should• let and give the sole use of the premises to Barry, the Judge's attention. A for twenty. _years, at the rent of 50 a-year. Barry thereupon petition was thereupon entered into possession, and so continued until the filing of the filled, pray- • ing petition in this matter. Patrick Trant died in February 1851, and mightthat be it de- his interest in the lease of 1830 vested in the petitioners. A petition Glared that the lease, which was filed in the Incumbered Estates Court for the sale of that interest, was taken for trading purpo- James Barry was returned as tenant in the rental, and, on the 9th of ses, created a tenancy in February 1858, Trant's interest was purchased by a trustee for James common in Equity, and for Barry. A large arrear of the rent of 50; contracted to be paid by payment of the rent.-Held, the agreement of the 11th of December 1843, having accrued, an that as there was a remedy at Law, the action for use and occupation was brought by, the petitioners against suit could not be maintained. James Barry. The case was tried at the Summer Assizes for the Semble.-An action at Law, on the special contract, could have been maintained, though the lease created a joint tenancy. Held; that as the lease created a tenancy in common, an action at Law, for use and occupation, or on the special contract to pay the rent, could be maintained. VOL. 9. 48 1859. Rolls. M'CARTHY V. BARRY. Statement. 378 CHANCERY REPORTS. county of Kerry, in 1858, and the lease was produced, and the clause at the end of the lease not having been adverted to by Counsel at either side, the plaintiff was nonsuited, on the ground that, at Law, the lease created a joint tenancy, which had not been severed. The petition in this matter was thereupon filed. It prayed that it might be declared that Patrick Trant and James Barry were tenants in common in Equity, or that the agreement of the 11th of December 1843 was an equitable severance of the joint tenancy ; an account of the sum due on foot of the rent of 50 thereby agreed to be paid, and that James Barry might be decreed to pay the amount due. The statements and prayer of the petition are set out more at length in the judgment. . , Mr. Serjeant Deasy and Mr. Leahy, for the petitioners. .ilrgument. Assuming that a joint tenancy was created at Law, as the lease was taken for partnership purposes, there was no survivorship in-Equity : Broom v. Broom (a); Lyster v. Dolland (b); Elliott v. Brawn (c) ; and although the tenancy could not be severed at Law. •except by deed, Co. Lit., 187 a, it might be severed in Equity by a , note in writing : Frewen v. Relfe (d); Blograve v. Winder (e). The, sale and conveyance in the Incumbered Estates Court precluded James Barry from relying on a joint tenancy. If, therefore, this was a joint tenancy at Law, the petitioner is entitled to a decree. If, on the other hand, there was a tenancy in common at Law, an action for the rent would not lie, and we must resort to this Court: Co.. Lit., 199 b, 200 a. At all events this Court has a concurrent jurisÂÂdiction. Mr. Hughes, Mr. Sullivan and Mr. Nelligan, for the respondent. If the lease created a joint tenancy at Law, to preclude the right of survivorship, the lease must have been taken for partnership purposes. There is no evidence of that in this case. It merely appears that a (a) 3 M. & K. 443. (b) 1 Yes. jun. 431. (c) 3 Swanst. 489. (d) 2 Br. C. C. 220. (e) 2 Yes. jun. 634. CHANCERY REPORTS. 379 partnership was entered into, shortly after the execution of the lease : Jackson v. Jackson (a). The agreement of the 11th of December 1843 would not amount to a severance, either at Law or in Equity : 4 Bac. Ab., Joint Tenants, p. 499 ; 4 Corn. Dig., Estate by Grant, k, 7 ; 2 Preston on Estates, p. 67 ; Musgrave v. Dashwood (b). But if the lease created a tenancy in common at Law, the remedy is at Law, and not in this Court : Pulteney v. Warren (c) ; 6 Anne, c. 10, s. 23; Drury v...