Re Ashe and Hogan's ContrAct

• Jurisdiction: Ireland
• Judgment Date: 16 March 1920
• Date: 16 March 1920
• Docket Number: (1920. No. 47.)
• Court: Rolls Court (Ireland)

Ashe v. Hogan.

In the MATTER of a CONTRACT dated the 14th Day of October, 1919, for the Sale of Leasehold Licensed Premises situate in Patrick Street, Fermoy, in the County of Cork, made between JAMES ASHE of the one part, and MARY HOGAN of the other part

and in the MATTER of THE VENDOR AND PURCHASER ACT

1874.

ASHE

and

HOGAN

(1920. No. 47.)

Vendor and purchaser - Conditions of sale - No title in accordance therewith - Possessory title not forced on purchaser - Estoppel.

Premises held under a lease of 1800 for 999 years, containing covenants against alienation, or user as licensed premises without the landlord's consent, and reserving a rent of £8 reducible to £4 so long as the covenants in the lease were observed, were put up for auction by the vendor. The particulars stated that the reduced rent of £4 had been accepted for many years, but no mention was made of these restrictive covenants. The conditions of sale provided that the title should commence with in assignment of the lease in 1839, and that the sale was made subject to the covenants in the lease. An abstract showing title from 1839 was delivered, whereby it appeared that the landlord had not assented to any of the assignments therein abstracted. The premises had for many years, without the landlord's consent, been sublet to a publican, and were in fact licensed premises. On the purchaser insisting that the landlord's consent to the assignment and to the user of the premises as a publichouse should be obtained, the vendor contended that a good title had been shown according to the conditions of sale. On a vendor and purchaser summons by the vendor, the vendor for the first time claimed to have made a good title under the Statute of Limitations, inasmuch as he and his predecessors had been in possession under assignments which were void under the Landlord and Tenant Act, 1860 (23 & 24 Vict. c. 154), s. 10, and that such a title could be forced on the purchaser.

Held, that the vendor, having accepted the benefit of the reduced rent of £4, was estopped from denying his liability to the covenants in the lease, and was bound by the covenant against alienation. Held further, that the doctrine of Tichborne v. Weir (67 L. T. 735) has no application to the right of a lessor to restrain breaches of negative covenants restricting the user of the demised premises, and that the title was not such us could be forced on a purchaser.

Tichborne v. Weir (67 L. T. 735) discussed.

Vendor and Purchaser Summons for a declaration that the purchaser's requisitions had been sufficiently answered, and that a good title had been made according to the particulars and conditions of sale. The property sold consisted of licensed premises, situated in Patrick Street, Fermoy, and were described in the particulars of sale as held under a lease dated 8th January, 1800, for the term of 999 years at the yearly rent of £8, reducible to £4 provided that the covenants in the lease were complied with. The lease contained a covenant by the lessee not to assign the premises without the landlord's written consent, and also a covenant not to sell wine, spirits, &c., on the premises without the like consent, with a condition of re-entry in the event of a breach of the last-mentioned covenant. There was no right of re-entry on the breach of the covenant against alienation. The particulars of sale described the premises as held under the above-mentioned lease at the rent of £8, but stated that for many years the reduced rent of £4 had been accepted by the landlord. No mention was made of the covenants against alienation and user as a public-house, either in the particulars or conditions of sale. The conditions of sale stated that the premises were sold subject to all the conditions and covenants in the lease, and stipulated that the root of title should be an assignment of the said lease dated the 15th June, 1839. An abstract was duly furnished, tracing the title from the date of the said assignment, and disclosed several assignments of the said leasehold premises, the first of them being made in the year 1862 to a predecessor in title of the vendor. None of these assignments had been made with the consent of the lessor for the time being. The purchaser's first requisition on the abstract was that the vendor should at his own expense procure the consent of the lessor to the assignment to the purchaser. To this requisition the following reply was made:—"The purchaser is precluded by the conditions of sale from making this requisition." There was also a requisition requiring the vendor to procure the consent of the lessor to the user of the premises as licensed premises. The reply was that they had been used as such for many years, and that the lessor was aware of this, and accepted payment of the rent. It was admitted that the landlord's consent could not be obtained.

O'Connor M.R. :—

[His Honor having stated the facts as above set out, proceeded:—]

Before the case came into Court the vendor did not recede from the position he took up that the purchaser was precluded by the conditions from requiring that the lessor's consent to the conveyance should be procured. The learned counsel for the vendor saw, however, that that position was not tenable, and he presented an entirely new view of the title. His case was this:

that, owing to the covenant against assignment contained in the lease, there could not be an assignment of the leasehold interest without the consent of the lessor, and that as that consent had not been given to the assignment to the vendor's predecessor in title dated 15th June, 1839, or any subsequent assignment, the vendor did not derive his title from conveyances of the leasehold estate, but from the fact that he and...