Moonan v Conyngham

• Jurisdiction: Ireland
• Judgment Date: 16 May 1894
• Date: 16 May 1894
• Court: Court of Appeal (Ireland)

Moonan,

Tenant

and

Marquis Conyngham,

Landlord (1).

Appeal.

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.

1895.

Land Law (Ireland) Act, 1881, sect. 58 — Residential holding — Estoppel.

In 1849 the landlord demised to C. 86 acres of land in the county Meath, at a rent of £107. The term of the lease was to be calculated from 1845, since when C. had been in possession, and during which time he had improved the house previously upon the lands, so as to make it too good for the holding considered as an ordinary agricultural holding. The valuation of the land was £99, and of the buildings £30. C. lived chiefly in Dublin, and managed the holding by a steward. The lessee's interest in the holding was put up for sale by public auction, the advertisements describing the holding as a “charming residence,” and adding, “the purchaser will be entitled, on the expiration of the lease, to have a fair rent fixed.” The landlord's solicitor attended at the auction, having authority to bid £1200 for the interest in the lease. He saw the auctioneer previous to the auction, and told him that the landlord did not take the view that a fair rent could be fixed, that if the auctioneer stated

publicly in the auction-room that a fair rent could be fixed, he would have to dissent, but that he did not wish to spoil the sale. The auctioneer thereupon said he would not read the statement in the advertisement. M. saw the advertisement, and became the purchaser of the holding at the auction for £1600. On the expiration of the lease M. took proceedings to fix a fair rent:—

Held (by Walker, C., and FitzGibbon and Barry, L.JJ.), that the holding was not a residential holding, so as to be excluded from the Land Law (Ireland) Act, 1881.

Held (by Sir Peter O'Brien, C.J.), that the landlord was represented by his solicitor at the auction, and that he was prevented from relying on the objection that the holding was a residential holding by the advertisement and what took place at the auction.

APPEAL by the tenant from the order of the Irish Land Commission, dated the 22nd December, 1893, dismissing his originating notice seeking to have a fair rent fixed on his holding known as Castlepark in county of Meath.

As stated in the originating notice, the area of the holding was 86 acres 3 roods 30 perches statute measure; the rent was £107 7s., the gross Poor Law Valuation £129, of which it appeared that £30 was on buildings and £99 on land.

By lease dated 5th October, 1849, the holding was demised by Marquis Conyngham to John Cornwall for a term of three lives or thirty-one years from 1st October, 1845, subject to a rent of £107 7s. In this lease the land was described as “that part of the lands of Slane called Castlepark, with the dwelling-house, offices and buildings of all kinds thereon, containing 53 acres 2 roods and 28 perches Irish Plantation measure, being 86 acres 3 roods 30 perches British statute measure, or thereabouts”; and the lessee was described as “John Cornwall (jun.), of Castlepark in the county of Meath, Esq.”

John Cornwall, the lessee, assigned the lease, in 1885, to his nephew Captain Crosby. Captain Crosby was the son of Robert Cornwall, and had changed his name. He died intestate in 1889. His father was his heir, and took out administration to him, and thereupon set up the holding for sale by auction on 1st November, 1890. The advertisement of the holding and the proceedings at the auction form an important part of the evidence and are stated fully in the judgments. At the auction Moonan purchased the holding for £1600.

Robert Cornwall, the last surviving life in the lease, died in 1891; and the lease then expired. Moonan forthwith served an originating notice, seeking to fix the fair rent of the holding. The sub-commission dismissed the originating notice, on the ground that the holding was not an agricultural holding. The Land Commission affirmed this decision.

The tenant appealed to the Court of Appeal.

The history, description, and user of the holding appear from the judgments.

Serjeant Dodd, Q.C., and Meredith, Q.C. (with them Macinerney), for the tenant.

Gordon, Q.C., and A. Murray, for the landlord.

Cur. adv. vult.

Walker, C.:—

In this case the sub-commission, of which Mr. Bailey was the legal member, dismissed the originating notice of the tenant, on the ground that the holding was a residential one. The head commission, over which, in the absence of Judge Bewley, Mr. Commissioner Fitzgerald presided, upheld that decision. I think both orders should be reversed, and the case remitted to the sub-commission to fix a fair rent.

The holding contains nearly 87 statute acres. It appears that possession of it was given to Mr. Cornwall—a predecessor in title of Moonan—in the year 1845. It then had a house upon it, which forms as improved a portion of the present residence, and it was stated that this house was of an inferior character. I have no doubt that Mr. Cornwall had some verbal promise of a lease, and that the making of it was deferred until he built the house and out-offices as they now stand, made an avenue, built a gate-lodge, and executed other improvements. It is stated his expenditure amounted to about £1600, and on the 5th of October, 1849, he obtained a lease for three lives or thirty-one years. The rent was £107 7s. and it went back to 1845, and is a rent measured on the lands only and would be about £2 per acre of the Irish acreage. Though the whole of the expenditure was the tenant's the lease demises the house and buildings to him, and, as the law stands, they must be treated as the landlord's property, and it must be held that the tenant took from him the holding as it was in 1849.

If the holding is a residential one it would probably be equally so if the tenant had converted it into such by his own expenditure after the lease so that it became and was a residential holding in 1881, and at the date of the originating notice.

The general description of the premises is the following:—The house is a two-storied one; it contains a drawing-room, a diningroom, and a breakfast-room, six bedrooms upstairs, kitchen, and pantries, two dressing-rooms. There is a garden surrounded by walls, which also form the road boundary. There is a plantation of two and a-half acres. There is a lawn in front of 3 acres separated from the rest of the land by a wire paling and sunk fence, and the house, garden, shrubbery, plantations and lawn comprise about seven acres of the entire holding. As regards out-offices, which were built by Mr. Cornwall, there is a coach-house, a stable with four stalls and a loose box, a cattle range of seventy-five feet by twelve, which includes tying for six cows. I see nothing unsuitable in the offices.

Mr. Cornwall only occasionally lived there. The lands wore used for grazing and managed by a steward. The farm is just beside the residence of Lord Conyngham, and it is surrounded on two sides by a wall.

Such being the general character of the residence, the question is, first, whether the residence and its surroundings are such an overshadowing feature that they dominate the holding and deprive it of an agricultural or pastoral character. In considering this question I leave out of sight the fact that Mr. Cornwall was a gentleman, as I do also that Mr. Moonan is a cattle dealer. No doubt if Mr. Cornwall was not a gentleman he would not have incurred so large an expenditure on the house and offices as £1600, and I am willing to concede that the house is too good for a farm of the size; but what the landlord set and measured the rent on was the land. It is larger in area than any holding which has been yet held to be residential, and it is in the heart of Meath, and not a villa residence. The valuation is £99 for the land against £30 for the buildings. Good houses in Meath, in the hands of tenant farmers are by no means uncommon, and Mr. Everard, a witness, swore he had a better one. There is no covenant in the lease which stamps a residential character upon the holding, and on the whole, considering the rent, the valuation, and the area, I do not think the case is brought within Carr v. Nunn (1), and Doyne v. Campbell (2), and I look on it rather as a farm, with too good a house on it for its size, than a residence with some land attached for the purposes of the residence.

I bring in aid of this conclusion what occurred at the auction, which I shall presently state, and which I think is evidence against the landlord as acts and admissions of his in respect of the character of the holding. It appears that by reason of the death of the owner the place was advertised for sale, in 1891. The poster advertising the sale was as follows:—

COUNTY MEATH.

CHARMING RESIDENCE,

with nearly

100 STATUTE ACRES

Of the finest land in Meath,

Messrs. R. B. Daly & Son are favoured with instructions from the Representatives of the late Captain Crosby to sell

BY AUCTION

At the Estate Salerooms, 30, Lawrence-street, Drogheda,

On Saturday, the 1st day of November, 1890, at One o'clock,

the delightfully situated residence of

CASTLEPARK,

within one mile of slane,

With 91 acres, 3 roods, 30 perches, statute measure, of most superior land, all under fattening pastures.

Descriptive Particulars.

The Mansion-house is of modern structure, the fittings of the establishment being extremely good and complete. The stabling, coach-house, gate-lodge, gardens, tennis-lawn, vinery, etc., are in perfect order, situate in a good hunting district, and in the midst of lovely scenery.

Castlepark, containing 86 acres, 3 roods, 30 perches, statute measure, is held under lease, dated the 5th October, 1849, from the Marquis Conyngham, for three lives, one of whom is still in being, or a term of thirty-one years concurrent, subject to the yearly rent of £107...