M'Evoy v M'Evoy

• Jurisdiction: Ireland
• Judgment Date: 07 November 1896
• Date: 07 November 1896
• Court: Chancery Division (Ireland)

M'EVOY

and

M'EVOY.

Chancery Division

Lease for life in being — Order fixing a fair rent — Status of former lessee — Devolution of tenant's interest — Land Law (Ireland) Acts, 1881 (sect. 21), and 1887 (sect. 1).

Sturges v. RyanUNK 24. L. R. Ir. 305.

VoL. I.] CHANCERY DIVISION. 295 M'EVOY v. M'EVOY. M. R. 1896. (1894. No. 434.) Lease for life in being—Order fixing a fair rent—Status of former lessee Devolution of tenant's interest—Land Law (Ireland) Acts, 1881 (sect. 21), and 1887 (sect. 1). Oct. 27. Nov. 7. A lessee holding a farm of land under a lease for a life in existence, or for thirty-one years, served an originating notice under sect. 1 of the Land Law (Ireland) Act, 1887 ,and obtained an order of the Land Commission dated the 29th June, 1888, fixing a fair rent. He died intestate in 1893, during the existence of the life mentioned in the lease: Held, that the lessee had acquired the status of a present tenant by reason of the adjudication of the Land Commission relieving him from the estoppel of his lease and fixing a fair rent on his application, and that his interest in the farm of land, on his death intestate, formed part of his personal estate. FURTHER CONSIDERATION. By lease dated the 29th September, 1853, Viscount GormansÂton demised unto John McEvoy, his heirs, executors, adminisÂtrators and assigns (if permitted to assign), part of the lands of Muff, in the parish of Nobber, and county of Meath, containing 69A. 1R., Irish measure, to have and to hold the said lands and premises from the 29th September next ensuing for the term of the life of His Royal Highness the Prince of Wales, or for thirty-one years, whichever should last the longer, paying the yearly rent of £102 4s. lld., together with the labour of two horses and two carts for two days in each year, or thirty shillings in lieu thereof. The estate and interest of the lessee subsequently became vested in Philip McEvoy, who on the 28th September, 1887, served an originating notice to have a fair rent fixed in respect of the farm of Muff. By order of the Land Commission dated the 29th June, 1888, it was declared that Philip McEvoy was to be deemed a present tenant of the holding, and the rent thereof was fixed at £102 4s. 11d. Philip McEvoy died the 1st May, 1893 (during the lifetime of the Prince of Wales), a bachelor and intestate, and letters of 296 THE IRISH REPORTS. [1897. M. R. administration of his personal estate and effects were, on the 22nd 1896. June of the same year, granted to the defendant. The plaintiff M'EvoY as one of the next-of-kin brought an action for the administration v. M'Evor. of the personal estate of the deceased, and by order of the Master of the Rolls, dated the 15th May, 1895, accounts and inquiries were ordered to be taken. By his certificate, filed the 1st July, 1896, the Chief Clerk found that the farm of Muff formed portion of the outstanding personal estate of the intestate. The question as to whether the farm was real or personal estate of the intestate was submitted to the Court on further conÂsideration. Law, Q.C., for the plaintiff : We submit that the farm in question forms part of the personal estate of the intestate. Sturges v. Ryan (1) decides that a lessee cannot be sued on a covenant to pay rent in his lease when a fair rent has been fixed on the application of an assignee of the lease under the Act of 1887. The basis of the decision in Connolly v. Tyrrell (2) is that a different status is acquired by the lessee who becomes a present tenant. The lease is gone, and a statutory tenancy is substituted for it: see the judgment of Walker, C., in that case. Smyth v. Moore (3), which is followed by Johnson v. Egan (4), shows that this result is not attained until there has been an adjudication on the originaÂting notice. Re Ruttledge (5) is not a decision to the contrary. The exact point was not involved in that case, and the observaÂtions of Monroe, J., on the subject amount to no more than a dictum. In re Gray (6) decides that an agreement between lessor and lessee of a lease for lives under the Act of 1881, fixing a fair rent, changes the devolution of the tenant's interest, and the ease is directly in favour of the plaintiff's contention. In Re Parke, deceased (7), it is expressly decided that when a lessee for lives has had a fair rent fixed the nature of his tenancy is changed from realty to personalty. (1) 24 L. R. Ir. 305. (5) [1895] 1 Ir. R. 328. (2) 32 L. R. Ir. 97. (6) [1894] 1 Ir. It. 65. (3) Ibid. 129. (7) 1 Ir. Weekly L. R. 168. (4) [1894] 2 Ir. It. 480. (5) Von. I.] CHANCERY DIVISION„ 297 This farm is real estate of the intestate. The provisions of the original contract between lessor and lessee remain binding save so far as they are modified by the order fixing the fair rent, and so far as they are not inconsistent with the statutory tenancy. That the lease should be absolutely destroyed was not contemplated by the Act of 1887. By the first section of that Act a lessee is enabled to anticipate the expiration of his lease, and then section 21 of the Act of 1881 applies, and such a lessee is to be deemed a tenant of a present ordinary tenancy subject to the conditions of his lease, so far as such conditions are applicable. There is nothing to show that the devolution of the tenancy is altered, and it would be an exÂtraordinary thing to hold that the property of the heir is conÂfiscated without an express statement in the Act to that effect. The cases cited fall short of...