Mary Anne Healy and Another v Maurice Spillane and Another

• Jurisdiction: Ireland
• Judgment Date: 20 January 1915
• Date: 20 January 1915
• Court: King's Bench Division (Ireland)

Mary Anne Healy and Another

and

Maurice Spillane and Another (1).

K. B. Div.

Appeal.

CASES

DETERMINED BY

THE KING'S BENCH DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1915.

Landlord and Tenant — Action for rent by Head Landlord against a Sub-tenant of Middleman under s. 12, sub-s. 2, of the Land Law (Ireland) Act, 1896 (59 & 60 Vict. c. 47) — Defendant named in and served with Ejectment Proceedings under 5.12, sub-s. 1, of the Act, and not appearing on hearing of Ejectment — Defence to Action for Rent that Defendant was not Sub-tenant to Middleman — Estoppel — Case Stated — Validity of Ejectment Decree questioned — Question of Validity of Decree not raised by the Case as stated.

Where a defendant, named in and served with ejectment proceedings under sect. 12, sub-s. 1, of the Land Law (Ireland) Act, 1896, as a sub-tenant of the middleman, does not appear on the hearing, and a decree in ejectment is granted, such defendant is estopped, in a subsequent action for rent taken against him by the head landlord under sub-s. 2 of the above section, from denying that his possession of the lands was as sub-tenant to the middleman.

So held by the Court of Appeal, affirming the decision of the King's Bench Division.

Held, by Palles C.B. (Madden and Boyd JJ. dissenting), that as in the ejectment decree under sect. 12, sub-s. 1, of the above Act, the middleman was described as holding under a “lease for ever” of the year 1784, it was to be presumed on the authority of Chute v. Busteed (16 I. C. L. R. 222), that at the date of the ejectment the relation of landlord and tenant did not subsist as between the head landlord and the middleman, and that consequently the ejectment decree was invalid and could effect no estoppel; and that the question for the Court being whether the defendant in the case was estopped by the decree, the Court could consider whether the decree was valid or not, even though no point or suggestion as to the invalidity of the decree appeared in the case as stated, since on a question of estoppel by judgment it is a condition precedent to the judgment operating as an estoppel that it should be valid and regular.

Held, by Madden and Boyd JJ.—(1) That the statement in the decree that the middleman held under a lease for ever did not necessarily raise a presumption that the interest of the middleman was that of a fee-farm grantee, and (2) whether the decree was invalid or not, the case as stated must be considered by the Court as stated only on the question of estoppel arising if the decree

was valid, and the case as stated must be taken to have been submitted on the agreement by both parties that the decree should be treated as a valid and regular decree.

Held, by the Court of Appeal, that the point as to the invalidity of the decree was not open on the case as stated.

Case Stated, at the request of the defendants, by Kenny at the Summer Assizes, 1914, for the county of Cork. The case set out as follows:—

(1) This case came before me at the Summer Assizes for the county of Cork, on an appeal from a decree of the Recorder of Cork, dated the 15th June, 1914, for the sum of £27 10s. with £2 7s. costs and witnesses' expenses.

(2) The civil bill was brought for the recovery of £61 5s., being two and a-half years' rent alleged to be due by the defendants to the plaintiffs, up to and ending the 25th March, 1914.

(3) The facts were these. The plaintiffs, on the 5th June, 1913, obtained a decree of the county court for recovery of the possession of the lands in respect of which the rent sued for in this action was due. The action of ejectment was one grounded on non-payment of one and a-half year's rent, due up to the 25th March, 1913, under a lease dated 27th March, 1784, under which the lands were held at a rent of £40 Irish currency, i.e. £36 18s. 5d. present currency, the grantee's interest in which was alleged to be vested in the Rev. James Stephenson, who is not a party to the suit. and whose address is unknown.

(4) The ejectment was brought under the provisions of section 12 of the Land Law (Ireland) Act, 1896, the entire of the premises being alleged to be in the occupation of sub-tenants.

(5) The civil bill in the said ejectment suit was in the form provided by the rules under the said Act, and was served upon the defendants, but they did not appear at the hearing thereof.

(6) The said civil-bill ejectment alleged that the defendants in the present civil bill were in occupation of portion of the said lands as sub-tenants thereof, and that the plaintiffs admitted the rights of the defendants, under the said section 12 of the Act of 1896, to retain possession as immediate tenants of the plaintiffs and not to have the decree in the said ejectment suit executed against them.

(7) The said decree of the 5th June, 1913, was also in the form given by the said rules, and contained the following paragraph: “And the Court having determined that the said premises consist entirely of holdings which are in occupation of the other defendants as tenants within the 12th section of the Land Law (Ireland) Act, 1896, and that the said James Stephenson, whose address is unknown, is immediate landlord of the said premises within the same section.”

(8) In the course of the hearing of the said appeal before me, counsel for the plaintiffs relied upon the findings in the said ejectment decree as an estoppel against the defendants, and contended that they must be deemed to be under-tenants in actual occupation of their holdings, and liable for the respective rents payable thereout by them as such under-tenants.

(9) For the defendants it was contended that the said ejectment decree was not an estoppel, and that it lay upon the plaintiffs to satisfy the Court that, notwithstanding the said decree, they were such under-tenants as aforesaid, and that they were entitled to go into a case in order to establish that they were not such under-tenants, but had actually acquired, at the date of the said ejectment decree, the estate of the said James Stephenson by virtue of the Statute of Limitations.

(10) I was inclined to hold that there was an estoppel. This particular civil bill was only one of several, and counsel for the two defendants in this case asked me to state a case for the King's Bench Division on the question of estoppel, which I consented to do.

(11) The question for the Court is whether the decree in ejectment operates as an estoppel so as to prevent the defendants alleging that they are not under-tenants.

(12) If the question be answered in the affirmative, there is to be a decree in this case for £61 5s., with costs and expenses below, and costs of appeal.

(13) If the question be answered in the negative, the civil bill is to be dismissed on the merits, with costs in the civil bill Court and costs of appeal.

(14) The civil-bill ejectment, dated the 15th May, 1913, the civil-bill decree, dated 5th June, 1913, and the civil bill herein, dated the 19th May, 1914, are annexed to this case and are to be deemed incorporated herewith.

The civil bill in ejectment was as follows:—

Land Law Acts.

Civil-bill ejectment for non-payment of rent where one year's rent is due, and where the entire of the premises is in the occupation of sub-tenants.

Cork County, East Riding, Division of Midleton.

Mary Anne Healy of 56 Palmerston Road, in the city of Dublin, widow, Charlotte Healy, of Kill, Tullow, in the county of Carlow, widow, and Kathleen Kennedy, wife of George Kennedy, of...