Robinson, Tenant; Wakefield, Landlord

• Jurisdiction: Ireland
• Judgment Date: 27 April 1896
• Date: 27 April 1896
• Court: Court of Appeal (Ireland)

Robinson

Tenant

and

Wakefield

Landlord (1).

Land Com.

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

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.

1896.

Landlord and tenant — Lease made in 1828 — Subletting — Consent by agent to assignment reciting possession of undertenants — Receipts for rent and payments for privilege of subletting — Landlord at the time tenant for life — Consent in writing of heir or assign of lessor — Tenant in occupation — Subletting Act (7 Geo. 4, c. 29), s. 3 — Land Law (Ireland) Act, 1881 (44 & 45 Vict. c. 49), s. 57.

The tenant under a lease made in 1828, and to which the provisions of section 3 of the Subletting Act, 7 Geo. 4, c. 29, applied, purported without deed or written instrument to make sublettings of portions of the holding. By deed made in 1862 the landlord's estate was settled in trust for W., who was heir-at-law of the original lessor, and his assigns, for his life, with remainders over. The tenant was charged an additional rent for the privilege of having the subtenants, and in receipts for rents given in 1866 and 1867 by the agent of W. there was an item of 15s. for six cottiers. In an assignment made in 1878 of the tenant's interest the lands were described as in the actual possession of the tenant and his undertenants, and a consent signed by the agent of W. was indorsed thereon. In 1883 and 1889 fair rents were fixed on the applications of some of the subtenants.

In an application after the death of W. to have the fair rent of the holding fixed:—

Held, that W. was competent to give the consent to the sublettings required by 7 Geo. 4, c. 29, s. 3, either as heir or assign of the lessor; that there was evidence that the sublettings were made with his express consent; that his consent could be given through his agent; and that the receipts coupled with the terms of the assignment of 1878, and the consent endorsed thereon, sufficiently testified in writing the landlord's consent to the sublettings.

Held, also, distinguishing Stevenson v. Parker ([1895] 2 I. R. 504) that the Court would, if necessary, under the circumstances of the case presume a lost consent in writing by W. to the sublettings.

This case, which was heard at Belfast before Bewley, J., and FitzGerald, Q.C., on the 19th December, 1895, now appeared in the list for judgment. The judgment of Bewley, J., fully states the facts and questions involved.

R. F. Harrison, for the tenant.

Hume, for the landlord.

Bewley, J.:—

This is a sequel to a former case between the same parties, in which, in pursuance of an order of the Court of Appeal, the tenant's originating notice to fix a fair rent was dismissed, on the ground that he was not in occupation of a substantial part of the holding. The decision of the Court of Appeal is reported in 30 L. R. (Ir.), pp. 547, et seq.

The holding contains about 57 statute acres, and is held under a lease dated the 29th February, 1828, made by Thomas Christy Wakefield, senior (the grandfather, and a predecessor in title of the present landlord), to James Woodhouse for two lives (one of which is still in being), or a term of thirty-one years, at the yearly rent of £60.

The lease having been made while the Act 7 Geo. 4, c. 29, was in force, the lessee could not make a valid assignment or subletting without the express consent of the lessor, his heirs, executors, administrators, or assigns, testified, where such assignment or subletting should be by deed or written instrument, by his or their being party to and signing and sealing such deed or written instrument, or by his or their written indorsement on such deed or instrument, ratifying or confirming the same, or where such assignment or subletting should not be by deed or written instrument, testified by his or their consent in writing (section 3 of the statute).

In the interval between the execution of the lease and the month of April, 1878, the lessee made, or purported to make, several sublettings of houses with small plots of land attached; and these sublettings were made without any deed or written instrument.

In the year 1865 there were six such cottier sub-tenants on the holding, and these included John Wylie, who had a house and about 2 acres of bog, at a rent of £4 a-year; Samuel Corner, who held a house and 1a. 2r. of land, at a rent of £4 a-year; and — M'Farlane, who had a house and 1a. 3r. 20p. of land, also at a rent of £4 a-year. At this time the interest under the lease was vested in Thomas A. Woodhouse, a son of the original lessee, and the then landlord, Thomas Christy Wakefield, junior, appears to have charged the lessee an additional rent or sum of 15s. per annum for the privilege of having these cottier tenants. In a receipt dated the 18th January, 1866, given by the then agent of the estate, Mr. John B. Doyle, for a years rent of the holding, due the 1st November, 1865, there is an item of 15s. for six cottiers. A similar charge is made in the receipt of the 5th January, 1867, for the year's rent due the 1st November, 1866; and according to the evidence of Mr. Thomas A. Woodhouse the same charge was continued so long as he remained in occupation of the holding.

In 1878 the holding was sold by a mortgagee of the lessee's interest, and was purchased by John Robinson, the present tenant, for a sum of £465. By a deed dated the 24th April, 1878, the interest under the lease was assigned to John Robinson, by all necessary parties, the holding being described as “that farm, tenement, and parcel of land in Derryean, otherwise Derrinraw, together with all houses, and buildings thereon, as the same was formerly in the possession of James Woodhouse, deceased, and now in the actual possession of Thomas Atkinson Woodhouse, and his undertenants.”

The assignment was made with the consent of the landlord, Thomas Christy Wakefield, junior, and to testify the consent the following endorsement on the deed of assignment was executed by Mr. John B. Doyle, the agent of the estate:—

“I, John B. Doyle, of Bessbrook in the county of Armagh, Esq., agent for Thomas Christy Wakefield, Esq., owner of the lands demised by the within recited lease, do by these presents under my hand and seal consent to the sale and alienation of the grantee's interest in said lease, and to the conveyance thereof to John Robinson of Clovenden, in the county of Armagh, farmer: Provided that this consent shall apply only to the alienation herein mentioned, and shall not license any alienation by the said John Robinson, his heirs, executors, or administrators, save only as is allowed by the within recited lease. Dated this 29th day of April, 1878.—John B. Doyle.”

Mr. John B. Atkinson acted as solicitor for the vendors in this transaction, and appears to have made some statements to John Robinson in reference to the rents payable by the cottier tenants as an inducement to him to purchase, but Mr. Atkinson, though he afterwards became land agent for the present landlord, and may have acted previously for the then landlord, Mr. Thomas Christy Wakefield, as solicitor in some matters of business, was not in any sense agent for the landlord in respect to the sale of the lessee's interest to John Robinson; and any statements or representations made by him on this occasion could not affect the landlord.

Between the date of this assignment and the month of October, 1887, four sublettings of portions of the holding were made by John Robinson, at rents amounting in the aggregate to £13 12s. 6d. a-year, three of them being in fact relettings of small holdings in the hands of cottier tenants at the time of the execution of the assignment. The present landlord became aware of these sublettings, but did not express any consent or dissent in respect of them by writing or otherwise.

On the 7th December, 1883, Samuel Corner, one of the subtenants whose tenancy was created before 1865, obtained an order from the Land Commission, fixing the fair rent of his holding at £2 15s.; and on the 5th February, 1889, an order was made on the application of Lucinda Robinson, limited administratrix of Jeremiah Robinson, in whom M'Farlane's holding had become vested, fixing the fair rent of that holding at £1 15s. The old rent in each of these cases appears from the originating notices, and the orders fixing the judicial rents to have been £4 per annum at the time the proceedings were taken.

On the 31st October, 1887, an originating notice was served by John Robinson to fix a fair rent of the holding comprised in the lease of the 29th February, 1828. At that time, and until after the hearing in the Court of Appeal, there were seven subtenants on the holding: three, viz. — John Wylie, Samuel Corner, and Jeremiah or Lucinda Robinson, holding under sub-tenancies existing at the time of the execution of the assignment of the 24th April, 1878, and the remaining four subtenancies subsequently created.

The decision of the Court of Appeal was based solely on the existence of these latter subtenancies. With respect to the former the following passages occur in the judgments of the members of the Court:— At p. 554, of 30 L. R., Ir., Lord Ashbourne, C., expresses himself thus:—

“It appears that from time to time, from the making of the lease till the year 1878 — a most important date in the case — various sublettings of his holding were made by the tenant, though without any written consent on the landlord's part. The importance of the date, 1878, is this, that in that year Thomas Atkinson Woodhouse, who then owned the lessee's interest, assigned the lands by deed to the respondent with the consent of the landlord's agent to the assignment testified by the requisite endorsement. In the deed of assignment to which the landlord so consented, the lands were described as being ‘in the actual possession of Thomas Atkinson Woodhouse and his undertenants,’ and...