Mulcaire, Tenant; Lane-Joynt, Landlord

• Jurisdiction: Ireland
• Judgment Date: 17 May 1893
• Date: 17 May 1893
• Court: Chancery Division (Ireland)

Appeal.

Before WALKER, C., SIR PETER O'BRIEN, C. J., and FITZ GIBBON and BARRY, L. JJ.

MULCAIRE,

TENANT;

LANE-JOYNT,

LANDLORD

Jackson v. M'MasterUNK 28 L. R. Ir. 176.

M'Carthy v. SwantonUNK 14 L. R. Ir. 365.

Fanuery v. NolanUNK 20 L. R. Ir. 537.

Maconchy v. RobertsonUNK 18 L. R. Ir. 483.

Beamish v. CrowleyUNK 16 L. R. Ir. 279.

Fannery v. NolanUNK 20 L. R. Ir. 537.

Keating v. BoltonUNK 22 L. R. Ir. 143.

, 1881, sect. 57 — Subletting — Consent of landlord —, 1887, sect. 4 — Triviality — Grant to middleman of reversion upon tenancy in occupation — Death of tenant — Son of old tenant succeeding without taking out representation — Statute of Limitations.

Tor.. XXXII.] Q. B. & EX. DIVISIONS. 683 MULCAIRE, TENANT ; LANE-JOYNT, LANDLORD (1). Appeal. 1893. Land Law (Ireland) Act, 1881, sect. 57-Subletting-Consent of landlord- May 12, 15, Land Law (Ireland) Act, 1887, sect. 4-Triviality-7Grant to middleman 17. of reversion upon tenancy in occupation-Death of tenant-Son of old tenant succeeding without taking out representation-Statute of LimitaÂtions. M. obtained possession of a holding in 1853. At this time there was a subÂtenant G. in possession of portion of the lands. M. died, but his family remained in possession. The landlord served a notice to quit. M.'s widow was given a new lease in 1863, on condition that G. was allowed to remain on as sub-tenant. J. M. acquired possession under the lease in 1868. G. died in 1870, and was succeeded by his son J. G., who entered into occupation of the portion sublet, and paid rent to J. M., against whom, in 1883, he fixed a judicial rent. J. M., during the currency of the lease, served an originating notice, claiming to fix the fair rent of the lands thereby demised: Held (diss. Sir P. O'Brien, C.J.), that the terms under which the lease was given amounted to a consent to the subletting to G., which enured for the benefit of his son, and that J. M. was to be deemed in occupation. Per Sir P. O'Brien, C.J. That at first J. G. was tenant by estoppel; but when the period fixed by the Statute of Limitations expired he became tenant of a new tenancy in interest in his own right, to which the consent of the landÂlord was not given ; that the subletting was not trivial, and that therefore J. M. could not be deemed to be bona fide in occupation of the holding. Flannery v. Nolan (20 L. It. Ir. 537).and Jackson v. 31' Muster (28 L. It. Ir. 176) discussed. APPEAL from an order of the Land Commission, dated 4th March, 1893, dismissing the tenant's originating notice seeking to have a fair rent fixed on his holding. By lease dated June 19, 1863, Archer Hill Montgomery, and Francis Octavius Montgomery, in consideration of a fine of £633 18s. demised to Catherine Mulcaire part of the lands of Aghanish, East, containing 239A. 2R. 14P. together with all houses and buildings thereon, excepting and reserving thereout to (1) Before WALKER, C., SIR PETER O'BRTF,N, C.J., and Frrz GIBBON and BARRY, L.JJ. authorized by them to enter on the said lands for the purpose of V. LANE-JOYNT. hunting, fishing, or fowling, and to prevent the erection or use of nets for the taking of fish in any part of the demised premises, &c., together with the right of varying any of the said water-courses, and also reserving to the lessors a fit and convenient passage through the demised lands to certain waste lands adjacent thereto, to hold the said demised premises (except as thereinbefore excepted) for three lives, at the yearly rent of £316 19s. The lease contained no covenant against alienation or subletting. The lessors' interest in the lease was subsequently purchased by William Lane-Joynt who was the landlord of the holding at the time when the tenant's originating notice was served. James Mulcaire, the tenant who served the originating notice, acquired the interest of the lessee (his mother) in these lands in the year 1868. His father had become tenant of the holding in 1853, and the family had been in occupation thereof continuously till the lease was executed. At the time when Mulcaire, the father, became tenant, there was a sub-tenant, named Guerin, in possession of a small portion of the lands, containing 4A. 3R. 30p., which be held at a rent of £6 per annum. Guerin paid this rent to the Mulcaires and remained in possession of this little holding till the lease was granted in 1863. Prior to the granting of the lease a notice to quit was served by the landlord on the Mulcaires and Guerin, and the landÂlord's agent insisted that part of the terms on which the lease was to be given was that Mrs. Mulcaire should allow Guerin to remain on at a rent of £4 10s. Guerin died in or about 1870. His son, James Guerin, succeeded him in possession, and remained there until the service of the originating notice. A few years after the date of the lease James Mulcaire raised the rent upon the sub-tenant to £6 per annum, and this rent was paid regularly till 1883, when James Guerin had the judicial rent of his holding fixed at £4 5s. in his own name. No evidence was given to show under what terms James Guerin succeeded his father. No representation to the father was proved to have been taken out ; no evidence was given as to who Vet. XXXII.] Q. B. & EX. DIVISIONS. 685 were his next-of-kin. The only testimony dealing with James Appeal. Guerin's succession to the holding was contained in the following 1893. CAIRE MUL answers given by the tenant to three questions put to him in cross- v. examination :-200, When did old Guerin die ? Seven or eight LANE-JOYNT. years after the lease had been taken out.' 201, Did you then take on his son as tenant ? did.' 202, Did he make a will, do you know ? No, he did not.' On this evidence the Land Commission dismissed the originÂating notice and discharged an order made by a sub-commission presided over by Mr. Edge, by which a fair rent was fixed on Mulcaire's holding. The judgment of the Land Commission Court was delivered by Mr. Justice Bewley, who was of opinion, that if James Guerin's tenancy were to be considered as a continuation of his father's, the subletting was not made by the tenant with the consent of the landlord, nor by the tenant at all, and that if James Guerin's tenancy were to be considered a new tenancy, no consent thereto by the landlord was proved, and that it was not trivial, and that therefore Mulcaire could not be deemed to be in occupation of his holding. From this decision the present appeal was taken. Sullivan, Q.C., and Charles Doyle, for the tenant (appellant). Meredith, Q. C., Jackson, and Joynt, for the landlord (responÂdent). The arguments appear sufficiently from the judgments. Cur. adv. vult. WALKER, C. :-- The holding in this case comprises 239A. 2R. 14F., and it is held under a lease dated 19th June, 1863, made by Colonel MontÂgomery to Catherine Mulcaire, at a rent of £316 19s. The Sub-Commission, presided over by Mr. Edge, fixed a fair rent on the holding of £220, and on appeal it was held that as to 4A. 3R. 30p., the tenant was not in occupation, and therefore the originating notice was dismissed. Several questions were argued before us :-1, that the subletÂting was made with the consent of the landlord ; 2, that the May 17. Apped. subletting was trivial in amount, within the meaning of the Act 1893. of 1887, and that the tenant was substantially in occupation of MIILCAIRE the holding-as regards this second question I do not purpose to v. LANE-JOYNT. express any opinion-and, 3, it was contended, on behalf of Walker, C. the landlord, that the sub-tenancy in the present sub-tenant Guerin, was, in any event, a new sub-tenancy created since the lease to which no consent was proved to have been given. It appears that the Mulcaire family were tenants of the lands since 1853, and that there was then upon the lands a sub-tenant named Guerin, the father of the present sub-tenant James Guerin. It is proved on evidence, which we cannot disregard, that Colonel Montgomery served a notice to quit on Mrs. Mulcaire and also on the sub-tenant Guerin. The agent, Mr. Harte, came to the land, and he required that Guerin should not be cleared out, and that the rent to be paid by him should be £4 10s., and he insisted on this as a condition of the new letting. The lease of 19th June, 1863, was made in consideration of a fine of £633 18s., and it demises " all that and those," &c. [His Lordship read the parcels, and the reservations, and exceptions out of the demise.] This lease contains no covenant against subletting. I am coerced upon the evidence to come to the conclusion that the sub-tenancy of Guerin in 1863 is referable to a consent by the landlord...