Midleton v Wallis

CourtKing's Bench Division (Ireland)
Judgment Date06 November 1913


Before O'BRIEN, L.C., and HOLMES and CHERRY, L.JJ.


Gibbon v. PayneUNK 22 T. L. R. 54.

Gibson v. DoegENR 2 H. & N. 615.

Jacob v. DownELR [1900] 2 Ch. 156.

M'Kenna v. HowthDLTR 43 I. L. T. R. 140.

Perry v. FarleyIR [1894] 2 I. R. 579.

Tennent v. NeilUNKIR I. R. 5 C. L. 418.

— Present tenancy — Pastoral holding — Lands within an urban area — Covenant to build — Not enforced for many years — Right to have fair rent fixed.

VOL. I.] CHANCERY DIVISION. 35 matter arising out of his office, or out of his official engagements. Barton, T. But this is not a ease of that kind. It has happened occasionally 1913. that all the parties to a suit have had some good reason for wishing WINDS• CRUEOL the receiver to bring some matter or matters before the Court. I v. remember one suit in which, at the wish of all the parties, thatPOLISHES, IRISH method of proceeding was carried very far, perhaps too far. It LIMI I ED. is possible that this receiver has been misled by what occurred in that case. I am quite satisfied that this is a bona fide applicaÂtion to obtain directions ; but the matter should have been subÂmitted to the plaintiff, who has carriage of the suit. It is necessary to bear in mind what the rule of practice is. The Court discourages such applications, and sometimes visits them with costs to be paid by the receiver personally. The plaintiff will, perhaps, wish to proceed with this summons ; and I adjourn it so as to enable him to look into it, and, in the meantime, I defer the consideration of the question of costs. Solicitor for the applicant : J. Deering. Solicitors for plaintiffs : D. 8f T. Fits Gerald. E. C. F. MIDLETON (VISCOUNT), .LANDLORD WALLIS, TENANT (1). Land Law Acts-Present tenancy-Pastoral holding-Lands within an urban area-Covenant to build-Not enforced for many years-Right to have fair rent fixed. A tenant held under a lease made in 1836, which contained a covenant to build certain houses on the land to form portion of a street of a town then in process of construction. No steps were ever taken towards the erection of the houses, and the tenant in fact used the lands as a pastoral holding in conjunction with another larger and adjoining farm. The holding was situate within an urban area. In 1911, the tenant duly applied to have a fair rent fixed. The Sub-Commission made an order declaring that the holding should be deemed a present tenancy, and fixing a fair rent. This decision was affirmed, on appeal, by the Land Commission. Before O'BRIEN, L.C., and HOLMES and CH Kan', L.JJ. Appeal. 1913. Nov. 4, 6. THE IRISH REPORTS. [1914. Held, that as the lands were in fact pastoral, and had always been used as such, the existence of a covenant to build, not acted on for over seventy years, did not prevent the tenancy from being a pastoral holding in respect of which a fair rent could be fixed. Held, by Cherry, that the covenant must be presumed to have been waived by the acts of the parties, and that on this ground the tenant was entitled to succeed in a fair-rent application. APPEAL on behalf of the landlord from an order of the Irish Land Commission declaring the lessee tenant of a present tenancy, and fixing a fair rent. The lands in question were held under a lease dated the 11th day of April, 1836, for an unexpired term of three lives and twenty-one years after the death of the survivor, made between the Right Honourable George, Lord Viscount Midleton, of the one part, and the Reverend Doctor William Greene, clerk, of the other part. The lease contained the following covenant :-" That the said William Greene, his heirs, executors, administrators, or assigns shall erect or cause to be erected on these demised premises good and respectable dwelling-houses of three stories in height, and of the same description and in...

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  • JAMES L. MURPHY & Company, Ltd v CREAN
    • Ireland
    • Chancery Division (Ireland)
    • 19 December 1914
    ...L. J. Ch. 34. Lound v. GrimwadeELR 39 Ch. D. 605. Maxim-Nordenfelt Gun Co. v. Nordenfelt Co.ELR [1893] 1 Ch. 657. Middleton v. WallisIR [1914] 1 I. R. 35. Mitchel v. ReynoldsENR 1 P. Wms. 181. Murphy v. The Cork JusticesIR [1895] 2 I. R. 104. Nordenfelt v. Maxim Nordenfelt Guns and Ammuniti......

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