Mullan, Tenant; Traill, Landlord

• Jurisdiction: Ireland
• Judgment Date: 07 March 1898
• Date: 07 March 1898
• Court: Land Commission (Ireland)

Mullan

Tenant

and

Traill

Landlord (1).

Land Com.

CASES

DETERMINED BY

THE QUEEN'S BENCH DIVISION

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.

1898.

Tenant's notice of intention to sell — Landlord's notice of intention to exercise the right of pre-emption — True value — Bona fide disagreement as to price — Mortgagee in possession — Real tenant — Jurisdiction — Land Law (Ireland) Act, 1896, sect. 19.

(1) The Sub-Commission have no jurisdiction to make an order as between landlord and tenant fixing the true value of the holding under the Land Law (Ireland) Act, 1881, sect. 1, unless there has been an actual and bona fide disagreement as to the price between the landlord and tenant.

(2) Sed quære: Whether such disagreement must necessarily take place after service of the notice of the tenant's intention to sell?

(3) Where the landlord has notice of a valid mortgage subsisting on the tenant's interest, which has not been duly objected to as a sale by him, he cannot thereafter treat the tenant, to the prejudice of the mortgagee, as a person qualified to sell the tenancy.

(4) The mortgagee who holds by such valid assignment, subject to redemption, the interest of the tenant in the tenancy is the tenant of the holding, as between all parties, once the landlord has notice thereof and does not dissent.

John Mullan was tenant of an agricultural holding consisting of 8a. 0r. 30p. as tenant from year to year at the yearly rent of £4 10s. The holding was situated at Castlecat, near Bushmills, in the county of Antrim. By indenture of mortgage dated 20th January, 1894, Mullan assigned the farm to Mr. David Innes, a money-lender and auctioneer of Coleraine. In November, 1896, Mr. Innes, acting as auctioneer for Mullan, advertised the farm for sale, but before the sale took place he received a letter from Dr. Traill, the landlord, objecting to the sale, on the ground that no notice had been served on him under the Land Act of 1881, and offering £45 for a clear assignment of the farm. Mr. Mac Laughlin, the solicitor for Mr. Innes, replied that the sale was being carried out under the Ulster Custom, and that notice was not necessary. Dr. Traill then caused cautionary posters to be

circulated describing the sale as illegal, and stating that he would not accept the purchaser, and would take instant proceedings to have the sale set aside. The auction, however, was held by Mr. Innes on the 20th November, 1896, and the farm was sold to John M'Fadden for the sum of £86. On the 7th December, 1896, Dr. Traill served notice to have the sale to M'Fadden set aside on the ground that the statutory notice had not been served. On December 10, 1896, Mr. Innes and M'Fadden served an ejectment on the title on John Mullan, which was returnable at Ballymoney Quarter Sessions on January 1, 1897. The ejectment was defended on behalf of Mullan by Messrs. Greer and Hamilton, who were paid by Dr. Traill. The ejectment was dismissed without prejudice, Mr. Leech, the solicitor for the landlord, objecting to a decree, as proceedings were pending before the Land Commission to have the sale set aside. Mr. Innes appealed, and at the March Assizes at Belfast, Mr. Justice Gibson reversed the dismiss, and gave a decree for possession, which was duly executed on 6th April, 1897, Mr. Innes being put into possession. Mullan was allowed to remain in the house as caretaker, and an agreement to that effect was signed on the same day. By an order of Mr. Justice Bewley dated January 27, 1897, on the application of the landlord, Mr. Innes was made an intervenient in the proceedings already originated to have the sale to M'Fadden set aside. In May, 1897, the case was heard at Belfast by the Chief Commissioners, who decided that the Ulster Custom did apply on the estate to a limited extent, but that sales by auction were not recognised. Accordingly the Court declared the sale by Mr. Innes to M'Fadden void, and the same was set aside.

After the ejectment proceedings, Mullan apparently at the suggestion of Dr. Traill served a notice upon him, on the 11th January, 1897, of his intention to sell his holding. Subsequently, on the 18th January, 1897, Dr. Traill served Mullan with a notice of intention to exercise his right of pre-emption. Mr. Innes was not served with any notice of this proceeding; but, in September, he received a letter from the landlord's solicitor stating the date and hour when the case would be heard. He, however, took no part in the hearing to fix the true value, which came on before a Sub-Commission, who, by an order dated the 30th

October, 1897, fixed the true value of the holding at £37 10s. The next notice Dr. Traill appeared to have given Mr. Innes of this proceeding was one dated the 15th December, 1897, in which he tendered Mr. Innes £30 15s., being £37 10s. the amount of the true value as ascertained by the Sub-Commission, less £6 15s. arrears of rent, and required him to give up possession. On his refusal to do so, Dr. Traill served a notice of motion for an order directing Mullan and Mr. Innes to execute a conveyance to him of the farm, and for liberty to lodge the amount of the true value in Court. A cross notice of motion was served by Mr. Innes for the same day, for an order that the entire pre-emption proceedings should be set aside, or in the alternative that he should be at liberty to intervene and appeal from the order of the Sub-Commission fixing the true value.

By consent of the parties these applications were treated as a rehearing of the order of the Sub-Commission of the 30th October, 1897, fixing the true value, and in this form the present case came before the Court.

Mr. Innes now contended that the order of the Sub-Commission should be set aside on three grounds: firstly, that there was no bona fide disagreement as to value between the landlord and tenant, and that they were acting fraudulently and collusively. Secondly, that such disagreement should arise after the service of the notice by the tenant of his intention to sell. Thirdly, that the relation of landlord and tenant did not subsist between Mullan and Dr. Traill, so as to enable the tenant to serve notice of intention to sell or to confer jurisdiction on the Court to fix the true value. In the alternative he disputed the finding of the Sub-Commission on the question of true value as inadequate.

Matheson, Q.C. (with him Traill), for the landlord:—

Mr. Innes cannot now be heard to allege fraud and collusion. He had notice of the proceedings before the Sub-Commission to fix the true value, and deliberately abstained from taking part in them. All he can do now, is to show that the amount of the true value is too low, or that his interest is prejudiced. The mortgagee is in no better position than the mortgagor, and if he advances money on the security of the tenant's interest, he does so at his own peril. (See judgment of Fitz Gibbon, L.J., in Farrelly v. Waller (1).) And if the true value is...