RIVERSDALE, Landlord; v GETHINS, Tenant

• Jurisdiction: Ireland
• Judgment Date: 12 December 1898
• Date: 12 December 1899
• Court: Court of Appeal (Ireland)

RIVERSDALE,

Landlord;

and

GETHINS,

Tenant

Land Com.

Appeal.

— Joint tenants or tenants in common — Unity of possession.

Boyland v. WrightDLTR 24 Ir. L. T. R. 14.

Cummins v. St. LegerUNK [1896] 2 Ir. R. 603.

Grattan v. WallUNK Ir. R. 2 C. L. 485.

Ireland v. LandyUNK 22 L. R. Ir. 403.

Ireland v. LandyUNK 22 L. R. Ir. 427.

Johnson v. WildELR 44 Ch. D. 146.

Kelly v. RatteyUNK 32 L. R. Ir. 445.

Liddy v. KennedyELR L. R. 5 H. L. 144.

Murphy v. MurphyUNK 15 Ir. C. L. R. 205.

Orme v. WillsUNK 2 L. R. Ir. 125.

Torish v. Clarke (Starr's Case)UNK 18 L. R. Ir. 289.

VOL. IL) QUEEN'S BENCH DIVISION. 81 ItIVERSDALE, LANDLORD; GETHINS, TENANT (1). Land Law (Ireland) Act, 1896, sect. 5, sub-sect. 3—Joint tenants or tenants in common—Unity of possession. The words " joint tenants or tenants in common " in the Land Law (IreÂland) Act, 1896, sect. 5, sub-sect. 3, must receive a strictly legal construction, and consequently, where a holding has been subdivided between a number of tenants who have not, and never have had, any privity of estate, title, posÂsession, occupation, or interest, the Court has no jurisdiction to fix a fair rent upon the respective portions of the holding separately occupied by them. BY lease, dated 4th March, 1857, Lord Riversdale demised part of the lands of West Bridgeland and Knockadroleen, conÂtaining 16A. 2a. 31p., situated in the county Cork, to Thomas Godson and John Godson for the term of forty-one years, from the 1st November, 1856, subject to the yearly rent of £18 7s. 6d. Thomas Godson died on the 23rd November, 1868. By lease dated 23rd November, 1868, John Godson, the surviving lessee, demised to John Murphy portion of the lands demised by the original lease of the 4th March,1857, containing 12A. OR. 39p. for a term of ten years from the 29th September, 1868, at the yearly rent of £27 lls. Before this term expired, John Godson, by indenture dated 15th August, 1874, in consideration of the sum of £150, assigned all his interest in the aforesaid 12A. OR. 39p. to the tenant John Murphy, subject, however, to the payment by him of the entire yearly rent reserved by the original lease, and to the .condition that the remaining portion of the lands comprised in the original lease consisting of 4A. 1R. 32P., and retained by John Godson, was for the residue of the term to be indemnified against all rent and taxes. In 1878 John Godson sold his interest in about 3A. 3R. 22P. being a further portion of the lands comprised in the original lease to Denis Murphy, to be held by him free of all rent and taxes for the residue then unexpired of the term granted (1) Before MEREDITH' S., and the Hon. GERALD FITZ GERALD, Q.C., Comm. 82 THE IRISH REPORTS. [1899. Land Com. by the original lease. Subsequently Denis Murphy sold his in 1898' terest to Henry Gethins, who was the tenant in the present case ittv MUD applying to have a fair rent fixed. John Murphy died in 1879, Landlord ; Gnaws, and his son Daniel Murphy went into occupation of his portion of Tenant. the holding. John Godson remained in occupation of the small portion, that he still retained in his possession, of the original holding up to the time of his death, which occurred in 1893, when it passed into the possession of Edward Godson. On the expiration of the term reserved by the original lease the landlord demanded possession. Edward Godson was apparently willing to surrender, but Daniel Murphy and Henry Gethins refused. Thereupon the landlord brought a civil bill ejectment on title against them for the recovery of the lands, which, however, was dismissed by the Recorder of Cork at the Sessions held in January, 1898, for the East Riding of the county of Cork. On the 28th March, 1898, Henry Gethins served an originating notice on the landlord to have a fair rent fixed, and on the 5th April, 1898, the landlord. served a notice to quit on Henry Gethins, Daniel Murphy, and Edward Godson. The landlord now applied to the Court that the notice of the tenant, Henry Gethins, to have a fair rent fixed be dismissed on the ground that he had not the legal status of tenant as required by the Land Acts. Wakely, for the landlord: To enable the tenant to have a fair rent fixed, his ease must fall within the Land Law (Ir.) Act, 1896, sect. 5, sub-sect. 3. Where a holding has been divided among several tenants, as in the present case, a separation of the portions of the holding occupied by them cannot be effected for the purpose of fixing a fair rent, unless they are joint tenants, or tenants in common. These terms must receive a strictly legal construction, as there is nothing in the section or the Act itself to show that they are to have a wider application. In the case before the Court the occupiers have not unity of possession, which is an essential requirement to establish a joint tenancy or a tenancy in common. Consequently the tenant's notice to have a fair rent fixed must necessarily fail. Vol.. II.] QUEEN'S BENCH DIVISION. T. M. Healy, for the tenant : The words " joint tenant or tenant in common " in the section should be construed in a popular, and not a strictly legal sense. It was clearly the intention of the legislation to admit all tenants among whom a holding has been divided to the benefits of the secÂtion, provided only they separately worked the respective portions of the holding in their occupation. MEREDITH, J. :— Oct. 25. This case came before us on notice of motion served by the landlord to dismiss the tenant's originating notice upon the grounds that the tenant Henry Gethins "is not tenant of a holdÂing" or a tenant " entitled to have a fair rent fixed under any of the Land Law (Ireland) Acts." The originating notice served on the 28th March, 1898, describes the holding as containing 2A. 1R. 19P. statute measure, but does not state the rent or specify the Poor Law Valuation. As a matter of fact the tenant before the Court has never paid any rent in respect of the parcel of land comprised in the originating notice. The material facts in the ease are not really in dispute. They are as follow : By lease dated the 4th March, 1857, Lord Riversdale deÂmised to Thomas Godson and John Godson part of the lands of West Bridgeland and Knockadroleen, containing 16A. 2R. 31r. statute, to hold to the said Thomas Godson and John Godson, their executors, administrators, and assigns for the term of forty-one years, from the 1st November, 1856, subject to the yearly rent of £18 78. 6d. This lease, it will be observed, expired on the 1st November, 1897. Thomas Godson appears to have died. prior to the 23rd November, 1868, for on that date John Godson alone demised to John Murphy the greater part of the holding, viz. 12A. OR. 39p. Subsequently, by indenture dated the 15th August, 1874, made between the above-mentioned John Godson of the one part and the above-mentioned John Murphy of the other part, after reciting the original lease of 1857 and the lease of 23rd November, 1868, and that " the said John Godson had determined to sell the said twelve acres and thirty-nine perches, subject to the payment of the entire yearly rent of £18 7s. 6d. reserved by the original lease, and that same were put 84 THE IRISH REPORTS. [1899. Land Com. up for sale by auction on the 14th July, 1874, and were purÂ1898' chased by the said John Murphy at the price of £150," it was VE dlord RIRSDALE, by said indenture witnessed that " the said John Godson, in con- Lan ; GETIIINS, sideration of £150, assigned to the said John Murphy, his executors, Tenant. administrators, and assigns that part of the said lands then in the Meredith, J. possession of the said John Murphy, containing 12A. and 39r., being part of the 16A. 2a. 31p. comprised in the original lease, to hold for the unexpired residue of the term granted by the original lease and for all other the estate and interest of the said John Godson, subject to the payment of the entire of the said reserved yearly rent of £18 7s. 6d." It is then further provided that the remaining portion of the said lands retained by said John Godson, containing 4A. 1R. 32r. was for the residue of said term to be free and indemnified against all rent and taxes. Even the remnant of the holding so retained by John Godson seems to have been too much for him, for in the year 1878 he sold portion of the 4A. 1R. 32p. to Denis Murphy, and assigned same to Denis Murphy, free from all rent and taxes, for the residue, then unexpired, of the term granted by the lease of 1857. Denis Murphy sold and assigned his interest to Henry...