Re Renewable Leasehold Conversion Act; ex parte Lane and Others

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 05 December 1906
• Court: Chancery Division (Ireland)
• Docket Number: (1906. No. 633.)
• Date: 05 December 1906

In re Renewable Leasehold Conversion Act; Ex parte Lane and Others.

Barton, J.

(1906. No. 633.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1907.

Lease for lives renewable — Fines — Nomine pœnæ clause — Demand — Waiver — Tenantry Act (19 & 20 Geo. 3, c. 30, Ir.).

Held, (1) that, assuming that the letters written prior to 1901 contained effective “demands,” made by and to the proper persons, in accordance with the provisions of the Tenantry Act, their effect was waived by the lessors in 1903 and 1904; (2) that the letters of January and September, 1905, were not effective “demands” within the Tenantry Act; (3) that, in the absence of any effective “demand” within the Tenantry Act, there was not such neglect or delay on the part of the lessees as would per se disentitle them to renewal; but that, under the circumstances, the petitioners should pay the whole costs of the petition.

Held, also, that the nomine pœnæ clause did not, if the lessor demanded the fines, give the lessee an option to put off paying them until the end of the lease, or at all events equity would not enforce the covenant in that sense; but, if no “demand” were made, the nomine pœnæ clause might cover a case of mere neglect to pay fines.

Petition under the Renewable Leasehold Conversion Act. By their petition filed on 18th June, 1906, Agnes Lane and ten other persons who were beneficially entitled to the lessees' interest in a lease for lives renewable for ever, dated 25th April, 1786, asked for a declaration that they were entitled to a grant in fee-farm of the premises comprised in said lease. The covenant for renewal was for renewal within twelve months after the falling of each life upon payment by the lessees of a renewal fine of £5 3s. 3d., Irish currency. The lease contained a nomine pœnæ clause providing for the imposition of a fine of sixpence per month in the event of the lessees refusing or neglecting to pay such fine within twelve months. The last renewal was dated 28th May, 1840, and of the three lives therein named one had fallen in in 1863, the second on or about 12th August, 1905, and the third on or about 5th May, 1906. No renewal fines had been paid.

The facts on which the questions in dispute between the parties depended were set out in the petition, affidavits, and correspondence.

The correspondence began with a letter of 12th May, 1891, from Mr. John J. Dudley to Mr. Walter Thornhill. The former was agent over the property, the rents of which he collected and paid to Mrs. Smyth, who was entitled to a jointure exceeding the amount of rents received. All letters written by or on his behalf prior to January, 1895, were written on behalf of Mrs. Smyth, the jointress. She died in 1895. Mr. Thornhill, to whom the letter was addressed, was agent and solicitor for Agnes Lane, who was beneficially entitled to the rents and profits of about a moiety of the interest in the lease, including those of a part of the estate which had for many years borne the head-rent, in indemnification of all the owners. Mr. Thornhill was in the habit, on behalf of Agnes Lane, of paying the head-rent to Mr. Dudley, and of accounting for the part of the rents of the indemnifying lands to which the other lessees were entitled, to Messrs. Scanlan & Sons, of Cork, who were their agents; but neither Mr. Thornhill nor Agnes Lane knew what was the nature of the title or interest of the other lessees. In his letter of 12th May, 1891, which was entitled “Smyth Estate,” Mr. Dudley wrote:— “A fee-farm grant is required to be taken out for the premises for which you pay me the rent of £42 1s. 10d. … The last renewal is dated the 28th May, 1840, and made to Messrs. Cogin and Cottrell for the lives of Michael M'Namara, Edward Gould, and Thomas Hayes, some or all of whom are probably dead. As besides the fine £5 3s. 3d., Irish currency, on the fall of each life there is a special one which may be increasing, please see to the matter now.” On the 13th May, 1891, Mr. Thornhill replied:— “One life (if not two) remains yet. I wrote the parties on the subject.” Mr. Dudley wrote on 3rd December, 1891:— “Are the parties interested taking any steps to get a fee-farm grant as the fines are increasing?” On 19th February, 1892, Mr. Dudley wrote referring to his previous letter “pointing out that the lease under which you pay me £42 1s. 10d. on behalf of Miss Lane requires renewal”; and adding— “I will be glad to hear from you as to cause of delay in submitting the draft renewal.” Mr. Thornhill's reply, dated 3rd March, 1892, stated:— “I am instructed that one of the lives is still in being, but that the fee-farm grant must, of course, be taken out if required.” On 14th April, 1892, Messrs. O'Connor & Dudley, solicitors, wrote to Mr. Thornhill— “Referring to your letter of 3rd ult. to Mr. J. J. Dudley, we have been expecting to receive draft fee-farm grant. Kindly let us have it at once, as Mrs. Smyth requires payment of the renewal fines.” On 23rd May, 1892, Messrs. O'Connor & Dudley wrote:— “What about sending draft fee-farm grant?” and on 24th May, Mr.Thornhill Wrote in reply:— “I have had some trouble in getting the fee-farm of Lackentubbermurry, owing to the premises having become sub-divided, and the documents scattered about from time.… I think it will be desirable to appoint new trustees before taking the grant. I am now in communication with the parties interested, and hope to get the matter under way without much further delay. I believe two of the lives in last renewal are still living.” Messrs. O'Connor & Dudley wrote on 30th September, 1892:— “What about the fee-farm grant herein?” On 8th December, 1892:— “What about the fee-farm grant in this case? The matter has remained over too long”; and on 9th February, 1893:— “We have been directed by Mrs. Mary Smyth, the present landlady, to apply to you, as agent and solicitor for the tenants, for payment of the renewal nomine pœnæ fines, … and to call upon your clients to take out a renewal of the lease.” In reply, Mr. Thornhill wrote on 11th February, 1893:— “My client is only entitled to certain parts and shares of this property, other portions of which are represented by Messrs. Scanlan & Sons, 69 South Mall, Cork, and though anxious to have fee-farm grant taken out, my difficulty is in getting at the right parties, consequent upon two or three recent deaths of those interested. Messrs. Scanlan are in communication on the subject, and I await evidence of title, &c., before preparing fee-farm grant for your approval…. I would be glad to know the amount of your client's claim.” On 15th February, 1893, Messrs. O'Connor & Dudley wrote:— “We find that we have referred you to the wrong renewal, and, therefore, on behalf of Mrs. Smyth, have to ask that your clients should pay the renewal fines, &c., due on the renewal of the 28th May, 1840, to Mrs. Smyth, and take out a renewal or fee-farm grant.”

The correspondence between the parties ceased from that date until after the death of the jointress, Mrs. Smyth, in 1895. Prior to her death all the letters addressed to Messrs Thornhill had been written on behalf of the jointress. On the 13th January, 1895, Messrs. O'Connor & Dudley wrote to Mr. Thornhill explaining how Mrs. Smyth had been entitled, and that Mr. Barton and Mr. Wise between them now represented the entire lessors' interest.

On the 2nd January, 1896, Mr. J. J. Dudley, the agent, wrote to Mr. Thornhill:— “What about the fee-farm grant? If not taken out as required, the lessees will lose their right to it.” On the 14th January, 1896, Mr. Thornhill wrote to Mr. Dudley:— “I have draft fee-farm grant prepared, only waiting to insert names of grantees, for a considerable time back. It appears that some of the beneficiaries having died representatives had to be raised, which caused delay. My clients are most anxious to get the grant completed, but you must, at the same time, understand that the lives named in last renewal are not all dead yet. One still lives.” The next letter was from Messrs. O'Connor & Dudley, dated the 14th January, 1898, referring to the previous correspondence, and adding:— “More than a reasonable time has now elapsed, and we must ask you to state definitely within one week from this date whether they are prepared to take out the grant or not. Our clients are quite tired of the delay, and insist upon our instituting the necessary proceedings to enforce their rights.” On the 20th January, 1898, Messrs. Thornhill & Son wrote:— “We have communicated with the parties concerned as to taking out fee-farm grant of Lackentubbermurry. We understood the lives are not yet all dead, but it is clearly best for all parties to have grant taken out, and we have applied for the necessary documents to be able to prepare same without undue delay. In whom is the grantors' estate now vested? What do you propose as to the title, &c.?” Messrs. O'Connor & Dudley wrote again on the 22nd February, asking Messrs. Thornhill to write definitely without further delay, and on the 28th February, 1898, Messrs. Thornhill & Son wrote:— “We have draft fee-farm grant prepared awaiting names of proposed grantees, and are in communication with the solicitors for the beneficiaries, who are very numerous. We do not represent all, and title is being prepared for us. We are most anxious to have it disposed of, but would prefer having the title up to date before furnishing draft grant to you for approval, and would ask you, now that things are in training, not to press us for a little.” From the date of this letter nothing was done until the 18th December, 1900, when Mr. Dudley wrote;— “What about the fee-farm grant? As I have already several times invited the lessees to take it out, the moment the surviving life drops they will lose their interest, which appears to be a very valuable one. I think you might call...