Morris v Kennedy

• Jurisdiction: Ireland
• Judgment Date: 11 December 1894
• Date: 11 December 1894
• Docket Number: (1892. No. 1219.)
• Court: Court of Appeal (Ireland)

Morris

and

Kennedy (1).

Appeal.

(1892. No. 1219.)

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.

1896.

Landlord and tenant — Lease — Covenant by lessor to make a street within one year — Breach — Assignment of lessor's interest — Liability of assignee — Continuing breach.

Lands described as bounded by a proposed new street were demised in 1872 to a lessee whose interest became vested in the plaintiff in the year 1888. By the lease the lessor covenanted to make the new street within one year from the date thereof. The lessor died in 1878. The trustees of his will and his executor assigned his interest in the lease to the defendants. The street not having been constructed, the action was brought in 1892 by the plaintiff against the defendants for breach of the covenant to make the street within one year.

Held, by the Court of Appeal, affirming the judgment of the Queen's Bench Division (Holmes and Madden, JJ., diss. O'Brien, J.) that the covenant was broken once for all when the year had elapsed and long before the plaintiff's title accrued, and that therefore the plaintiff was not entitled to recover.

Appeal by the plaintiff from the judgment of the Queen's Bench Division.

The action was brought in the year 1892 by the plaintiff (who was assignee of the lessee's interest under a lease made in 1872 for 5000 years) against the defendants (who were owners of the lessor's interest in the said lease) claiming damages for breach of a covenant contained in the lease whereby the lessor covenanted to make a new street adjoining the demised premises within one year from the date of the lease. The parcels in the lease were described as bounded on the north and east by the said new street. The material parts of the lease are fully set out in the judgment of the Lord Chancellor in the Court of Appeal. The plaintiff purchased the lessee's interest in the lease in the Landed Estates Court, and his conveyance bore date January 13, 1888. The new street was not constructed either by the lessor or his successors in title. The lessor died in 1878: the defendants held under an assignment from the trustees and executors of his will.

The plaintiff in his statement of claim alleged two breaches of the covenant; (a), by the lessor in his lifetime, and his executors after his death; (b), by the defendants.

At the trial the Judge directed a verdict for the plaintiff, and damages were assessed alternatively by the jury, i.e. £15 for damages accrued before action brought, and £350 for damages if the covenant were never to be performed. The Judge entered judgment for £350, and stayed execution.

The Divisional Court (Holmes and Madden, JJ., O'Brien, J., diss.) (1) having set the judgment so entered aside, and having entered judgment for the defendants, the plaintiff brought the present appeal.

(1) The following judgments were delivered (December 2nd, 1893) in the Queen's Bench Division on motion by the defendants to enter judgment for them:—

The facts are more fully stated by the Lord Chancellor in his judgment in the Court of Appeal.

Carton, Q. C., and Campbell, Q.C. (with them, M'Ilroy), for the appellant:—

The whole lease must be read together in order to construe the covenant: Doyle v. Hort (1). When so read the breach of the covenant is seen to be a continuing breach: this is a demise of land bounded by a street, with a covenant to make the street by the lessor: the parcels and covenant taken together show that there was in fact a demise of a right of way with carriages and

on foot and a covenant to make it. Such a covenant is a covenant running with the land for the breach of which an assignee of the lease can sue: Kingdon v. Nottle (1); Jones v. King (2); Spoor v. Green (1). Grescot v. Green (2) is distinguishable because the house was not on the ground at the demise. So, too, with The Churchwardens of St. Saviour's v. Smith (3). Espley v. Wilks (4) is expressly in point: it shows clearly that the plaintiff is entitled to a right of way as wide as the proposed street.

[They also cited Easterby v. Sampson (1) and Roberts v. Karr (2).]

Gordon, Q.C., and Meredith, Q.C. (with them, R. F. Harrison), for the respondents:—

The covenant is quite clear and distinct: it is not to be controlled by the other parts of the deed: Dawes v. Tredwell (1): it was broken before the assignment: therefore the defendants are not liable: Grescot v. Green (2);

The Churchwardens of St. Saviour's v. Smith (1): Coward v. Gregory (2). To read this covenant as a continuing covenant is to strike the words “within one year” out of it: when the year had elapsed the covenant was broken once for all. Espley v. Wilks (1) is distinguishable: see pp. 303 and 304 of the report.

This is not a covenant to maintain a street. No such

covenant will be implied: Erskine v. Adeane (1). Even if the deed is to be read as a grant of a right of way such as the plaintiff contends for, there would be no obligation on the defendant to maintain the right of way in repair: Gale on Easements, page 86, note (a).

Cur. adv. vult.

Carton, Q. C., and Campbell, Q.C. (with them, M'Ilroy), for the appellant:—

Gordon, Q.C., and Meredith, Q.C. (with them, R. F. Harrison), for the respondents:—

Madden, J.:—

My judgment in this case has been mainly determined by the use of the word “street” as descriptive of the thing which the lessor covenanted to construct and finish within one year. Had he covenanted to construct upon his own land for the benefit of the demised land, something which required continued maintenance on the part of the covenantor, I should probably have held the obligation to continue during the term of the demise. It might even in such case be necessary to imply a covenant to maintain the thing so constructed, in order to give full effect to the lease as a whole. But such a covenant should not be needlessly implied; and this principle, sound in all cases, is not less so when the breach of covenant, if it be a continuing one, must last for a period of 5000 years.

In construing the covenant in question we are at liberty to consider the nature and situation of the subject matter of the demise. It is a parcel of ground, to be used for building, situated in the Borough of Belfast, described as bounded on one side by a street actually constructed, and to be bounded on another by a second street, not actually in existence, but to be constructed and finished by the lessor. I find that the Borough of Belfast is the subject of special legislation, and that the word “street” has in that legislation a specific meaning, namely, a roadway taken over by the local authorities, certain statutory requirements having been complied with. It is a conclusion of common sense as well as of law that the owner and lessee of building ground in Belfast had present to their minds this special legislation, when they entered into a contract for the construction of a street; and I therefore hold that what the lessor was bound to complete and finish within one year was a street within the meaning of the Belfast Improvement Acts.

If this be so, the legal result appears to be clear. Once the roadway was constructed and converted into a street under the Acts, the lessor had completed his contract and was under no continuing obligation with regard to the maintenance or repairing of the street, with which, indeed, he could not lawfully interfere. The case therefore ranges within the authorities which establish that, where there is a covenant in a lease to do a specific and isolated act at a definite time, on the occurring of which the breach and the amount of damage are both completely and finally ascertainable, an assignee of the leasehold interest cannot sue in respect of a breach antecedent to the accruer of his interest, although the covenant be one in its nature capable of running with the land—as the covenant clearly is in this present case. I refer to such cases as in Grescot v. Green (1 Salk. 198); The Churchwardens of St. Saviour's v. Smith (1 Wm. Bl. 351), and the decision of the Exchequer in Doyle v. Hort (4 L. R. Ir. 455). In every case in which an assignee has been held entitled to sue in respect of a breach antecedent to his assignment, it will be found that the decision was founded on the absence of one or more of the elements which I have enumerated. Thus, in Martyn v. Clue (18 Q. B. 661) it was held that an assignee could sue upon a covenant to put the premises in repair. This was held to be a covenant continuing to the end of the term, and not a covenant to do a definite act at a particular time, Lord Campbell observing during the argument that its performance was a matter essentially connected with the enjoyment of the demised premises. The case of Kingdon v. Nottle (4 M. & S. 53) was strongly relied on by the plaintiff's counsel. There a mortgagor covenanted with his mortgagee that he was seised in fee-simple, and had good right to convey. The mortgagee died, and his devisee sued the mortgagor on the covenant, assigning as breaches that the defendant had no title, and that the premises were thereby of less value to the plaintiff than they would otherwise have been. There, undoubtedly, the covenant was broken, and the measure of damage ascertainable the moment the mortgage was executed, and yet the Court of Queen's Bench held the plaintiff entitled to sue. It is not easy to see how the covenant in that case is distinguishable from a covenant to do a particular thing once for all at a definite time: the Court, however, did so distinguish it, on the express ground that as long as the defendant had not a good title there was a continuing breach, holding that the substantial breach, according to the spirit of the covenant, was in the time of the devisee, inasmuch as he thereby lost the fruit of the...