M'Sheffry v Doherty

• Jurisdiction: Ireland
• Judgment Date: 25 January 1895
• Date: 25 January 1895
• Court: Court of Appeal (Ireland)

M'Sheffry

and

Doherty (1).

Q. B. Div.

Appeal.

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

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.

1897.

Landlord and tenant — Ejectment for non-payment of rent — Cross-ejectment — Estoppel — Eviction of portion of leasehold for non-payment of rent issuing out of the entire — Judgment null and void.

W. D. held the lands (known as the T. and E. lands) of C. from the Bishop of Derry for a term of twenty-one years, customarily renewable. In 1872 W. D. purchased from the Church Temporalities Commissioners the perpetuity, which was conveyed to him by indenture, dated the 21st October, 1872, subject to the yearly rent of £119 14s. 7d. By deed of equal date W. D. mortgaged the lands to the Commissioners, to secure £842 17s. 2d., the amount of the purchase-money. The interest in the lands subject to the mortgage became vested in several persons, one denomination called A. and T. being vested in W. D., and the other denominations by virtue of the statute in the several other persons, who, at the time of the grant in perpetuity, were the owners, along with W. D., of the interest in the ecclesiastical lease. In 1840, under a deed of family arrangement, the lands of A. had been made primarily liable to payment of the whole head rent by O. D., the then lessee.

W. D. died in 1876, having by will devised the lands of A. to J. M'S. in trust for Grace D. for life, with remainder to J. D. The perpetuity Tent of £119 14s. 7d. became vested in Edward D., and this having fallen into arrear, he brought, in 1883, an ejectment for non-payment of rent against all the lands comprised in the perpetuity grant. He discontinued this action, and brought a fresh ejectment on foot of the entire rent against the lands of A. alone, serving the writ only on Grace D. and J. M'S. and the under-tenants of A. Grace D. took defence, but subsequently gave a consent for judgment, which was entered on the 15th December, 1883, for the recovery of A., and a habere was executed on the 2nd February, 1884, but Grace D. and the under-tenants were put back as caretakers. Subsequently they refused to give up possession, and an ejectment on the title was brought against them, judgment obtained by default, and a habere executed on the 4th May, 1886, under which Edward D. went into possession of A.

On the 10th February, 1893, J. M'S., Grace D., and J. D. brought an ejectment against Edward D. to recover the lands of A. This resulted in a judgment for the defendant, which the plaintiffs now moved to change, relying on the invalidity of the previous ejectment proceedings as rendering the judgment therein a nullity:—

Held, by the Queen's Bench Division, that Grace D. and J. M'S. were estopped from denying the identity of the lands sought to be recovered in that ejectment with those out of which the rent issued; that the plaintiff J. D., in asserting an equitable claim as a volunteer under the settlement of 1840, could not, in the face of that deed, rely on the fact that the rent issued out of other lands, and not out of A. alone; and that accordingly the judgment for the defendant should stand.

Held, by the Court of Appeal, reversing the decision of the Queen's Bench Division (diss. Porter, M.R.), that the judgment in the second action of ejectment was null and void, having been recovered in an action brought for the purpose of evicting portion only of the premises comprised in the perpetuity lease, and that it created no estoppel against the present plaintiffs.

William Doherty held the two quarters of land, known as the Termon and Erenagh lands of Clonmany in the Co. of Donegal, under a bishop's lease, from the Bishop of Derry, for twenty-one years customarily renewable. In 1872 William Doherty purchased the perpetuity in the lands from the Church Temporalities Commissioners, which was conveyed to him by indenture, dated the 21st October, 1872, at the rent of £119 14s. 7d. By deed, of equal date, William Doherty mortgaged the lands to the Church Temporalities Commissioners to secure the sum of £842 17s. 2d., the amount of the purchase-money.

The equity of redemption in the lands became vested in several persons; one denomination, called Annagh and Termaine, being vested in William Doherty, and the other denominations, by virtue of the statute, being vested in the several other persons, who, at the time of the grant in perpetuity, were the owners, with William Doherty, of the interest of the other denominations included in the ecclesiastical lease. Under a deed of family arrangement, dated the 19th October, 1840, Annagh had been primarily charged with the rent and expenses of renewing the bishop's lease. William Doherty died in 1876, having previously, by will, devised his portion of the lands to James M'Sheffry and another since deceased, upon trust for Grace Doherty, during her widowhood, with remainder to John Doherty in fee. Grace Doherty thereupon entered into possession of Annagh and Termaine.

The rent reserved by the grant in perpetuity, which issued out of the whole of the said lands of Clonmany, was purchased by Edward Doherty, to whom it was conveyed by indenture, dated the 23rd December, 1878. This rent fell into arrear, and in January, 1883, Edward Doherty brought an action of ejectment for non-payment of rent for all the lands of Clonmany, but service upon all the tenants in occupation was so difficult that the action was discontinued.

In February, 1883, Edward Doherty brought another ejectment for non-payment of the entire rent, but only against the lands of Annagh and Termaine, which were in the possession of Grace Doherty and her undertenants. She took defence, but afterwards gave a consent for judgment, and judgment was entered for the recovery of Annagh and Termaine; a writ of habere was issued, and possession was taken; but Grace Doherty was put back as caretaker of Termaine, and her undertenants as caretakers of their holdings in Annagh. She subsequently refused to give up possession, and an ejectment on the title was brought against them by Edward Doherty. Judgment was entered and possession recovered.

In 1888 the Irish Land Commission, in whom the interest of the Church Temporalities Commissioners was vested, brought an action in the Chancery Division to recover the sum due on foot of the mortgage of the 21st October, 1872, against the owners of all the lands held under the perpetuity grant (see the case reported, 29 L. R. Ir. 185). It was decided by the Vice-Chancellor that the ejectment for non-payment of rent was inoperative and void, and that the lands, including Annagh, were still subject to the mortgage.

The present action was brought by James M'Sheffry, Grace Doherty, and John Doherty against Edward Doherty, to recover possession of, and establish their title to, the lands of Annagh. The defendant pleaded, besides the plea of possession, the recovery of the judgment by Edward Doherty in 1883 in ejectment for non-payment of rent.

The case was tried before Holmes, J., without a jury, at Londonderry, when his Lordship entered judgment for the defendant. The plaintiffs now moved to change the judgment into a judgment for them.

Cur. adv. vult.

Meredith, Q. C., and Wylie, Q. C., for the plaintiffs.

Ross, Q. C., and J. A. Rynd, for the defendant.

Madden, J.:—

This is an action for the recovery of the possession of certain lands, and in the alternative for declaration of the plaintiffs' title. Although the question involved is of general importance, it does not appear to have been up to the present time the subject of decision.

The lands to which the action relates were held, with other denominations, of the see of Derry, under the ordinary bishop's lease, renewed from time to time. The last lease was executed in 1871 to one William Doherty. On the 21st of October, 1872, the Commissioners of Church Temporalities executed to William Doherty, under their statutory powers, a perpetuity grant of the lands comprised in this lease, subject to the perpetual yearly rent of £119 14s. 7d. By a deed of even date the lands comprised in this grant were conveyed to the Commissioners by way of mortgage to secure the purchase-money of the perpetuity of the lands, amounting to the sum of £842 17s. 2d.

William Doherty, the grantee, was not beneficially entitled to the entire of the lands comprised in the perpetuity grant. He may be considered, for present purposes, as entitled to one of the denominations, namely Annagh, the subject of this action. His position with reference to the other denominations was that of trustee for the persons beneficially interested in the lease, for whose benefit the perpetuity grant enured by virtue of the statutes under which it was executed, and with whose title this action is not concerned. William Doherty, having thus become seized in in fee of Annagh, died in 1876, and the plaintiffs in this action claim these lands under his will—James M'Sheffry as trustee, in whom the legal estate, but for the outstanding mortgage, would be vested; Grace Doherty as tenant for life; and John Doherty as remainderman, with certain equitable rights attaching to the life-estate of Grace.

So far the plaintiffs' title to the lands in question is clear. It is, however, contended that their title has been extinguished by certain ejectment proceedings brought for the recovery of the perpetuity rent reserved by the grant of 1872; and it is necessary to examine those proceedings in detail. The perpetuity rent, reserved by the grant of 1872, became vested in the defendant Edward Doherty, under a conveyance executed by the Commissioners on the 23rd of December, 1878, and a subsequent devolution of title, the details of which are immaterial. This perpetuity rent possesses certain statutory incidents of a rent-service; amongst others, the right of its owner to bring...