Re Wahab and Cleanaghan's Contract

• Jurisdiction: Ireland
• Judgment Date: 18 June 1903
• Date: 18 June 1903
• Court: Chancery Division (Ireland)

In re Wahab and Clenaghan's Contract.

V.-C.

(1903. No. 207.)

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.

1903.

Lease with covenant by tenant not to alienate without the consent of landlord, and if he did so, to pay an additional rent — Order fixing fair rent — Right to sell discharged from liability for additional rent — Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), ss. 1, 21 — Land Law (Ireland) Act, 1887 (50 & 51 Vict. c. 33), s.1.

A lease, made in 1875, contained a covenant by the lessee not to alienate without the consent of the landlord, and if he did so to pay an additional rent. After an order had been made, under the Land Law (Ireland) Acts, 1881 and 1887 (44 & 45 Vict. c. 49; 50 & 51 Vict. c. 33), declaring that the lessee was to be deemed a tenant of a present tenancy in the holding, and fixing the fair rent thereof, the tenant ageeed to sell subject to the fair rent. Notices were served pursuant to section 1 of the Act of 1881. No claim or objection was made by the landlord:—

Held, that the tenant could, without obtaining the consent of the landlord, sell the holding discharged from liability for the additional rent.

The principles on which In re Wright and Tittle's Contract (29 L. R. Ir. 111) was decided held to apply.

Adjourned Summons.

Catherine Wahab advertised for sale by public auction on the 20th December, 1902, all the estate and interest in part of the lands of Feriskill, known as Mossvale, in the county of Longford, her property, held for a statutory term under the Land Law Acts, at the judicial yearly rent of £122, under order of a Land Sub-Commission, varied on appeal by consent to the said sum.

The conditions of sale provided (amongst other matters) that—(5) The title should commence with the will of William Wahab, the husband of the vendor, and the order of the Sub-Commission fixing the fair rent at £120, varied on appeal on consent to £122 by order of the Land Commission, dated the 15th December, 1896, and no objection or requisition should be made by the purchaser in respect of the earlier title, whether same appeared in the abstract of title by recital or otherwise, or not; (8) The title of the landlords should be absolutely admitted, and no objection or requisition should be made in respect thereof, nor should the earlier title be in any respect inquired into.

Hugh Clenaghan became the purchaser at £1550.

An abstract of title was furnished, the title being as follows:—

By lease, dated the 7th April, 1875, James Hamilton and others demised to William Henry Wahab the lands in question, containing 92a. 1r. 23p. Irish plantation measure, for thirty-six years from the 1st November, 1874, at the yearly rent of £138. The lease contained a clause of re-entry in default of sufficient distress for the said rent, or if all the covenants by the lessee therein contained were not observed; and William Henry Wahab for himself, his heirs, executors, administrators and assigns, covenanted with James Hamilton, &c., to pay the said rent of £138, and keep the premises in repair, &c.; “and, further, that no part of the above mentioned premises shall be set, let, sublet, aliened, sold, or disposed of by the said William Henry Wahab, his executors, administrators, or assigns, without the consent in writing of the said hereinbefore mentioned lessors respectively, their respective heirs or assigns, first had and obtained; and that if the said William Henry Wahab, his executors, administrators or...