Roulston, Tenant; Caldwell and Cust, Landlords

• Jurisdiction: Ireland
• Judgment Date: 06 November 1894
• Date: 05 November 1894
• Court: Court of Appeal (Ireland)

Roulston,

Tenant

and

Caldwell and Cust,

Landlords (1).

Appeal.

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.

1895.

Land Law (Ireland) Act, 1881 — Present tenancy subsisting at the passing of the Act — Mortgage by owner in fee — Lease by mortgagor after the mortgage, but before 1881, without consent of mortgagee — Payment of rent by lessee to mortgagee — Recognition of lease by mortgagee.

A. H., being seized in fee of lands in the county of D., mortgaged the lands in 1874 in fee to C. On the 30th October, 1880, W. H., the successor in title of A. H., made a lease of the lands to J. R. for ten years, at a rent of £131, the mortgagees not being parties to the lease, nor assenting to it. On the 1st November, 1884, the mortgagees gave notice to R. not to pay the rent due under the lease, or any future rent, to the landlord, and on the 18th April, 1885, they demanded payment from J. R. of the half-year's rent due on the 1st November previous, and also required the future rent to be paid to them. Some further correspondence passed between the mortgagees and J. R., in which the parties treated with each other on the basis that the lease was subsisting. On the 29th October, 1890, J. R. served a notice to fix a fair rent. The Land Commission, reversing the decision of the Sub-Commission, held that J. R. was not a present tenant at the passing of the Act of 1881:—

Held (reversing the decision of the Land Commission), that the mortgagees had shown an intention to deal with the lessee as holding under a lease, and that he was entitled to a present tenancy existing at the passing of the Act of 1881.

Alexander Hamilton, being seized in fee of the lands of Gortaquigley, in the county of Donegal, on the 8th December, 1874, mortgaged the lands in fee for £2500 to G. B. Caldwell and R. J. Oust. On the 30th October, 1880, William Hamilton, the successor in title of Alexander Hamilton, made a lease to Joseph Roulston for a term of ten years, at a yearly rent of £131. The mortgagees were not parties to the lease, nor did they consent to its being made. In 1884 the interest on the mortgage fell into arrear, and notice was served by the mortgagees on Roulston the tenant not to pay any further rent to the

lessor. This notice was contained in a letter dated the 1st November, 1884, in the following terms:—“On behalf of our clients, Captain C. B. Caldwell and Mr. R. J. Oust, the mortgagees of the lands of Gortaquigley and Coolaghey, demised to you by an indenture of lease dated the 30th October, 1880, we hereby give you notice not to pay any rent now due, or which may hereafter become due by virtue of the said lease, without the authority and consent of the mortgagees.”

On the 18th April, 1885, Cookson & Co., the English solicitors for the mortgagees, again wrote to Roulston: “Our clients, Messrs. C. B. Caldwell and R. J. Cust, the first mortgagees of Gortaquigley, have instructed us to request you to pay the half-year's rent which became due on the 1st November last to their agents, Messrs. Townshend & Co., of 15, Molesworth-st., Dublin, as soon as they apply to you for it, and also the future rent as it becomes due.”

On the 21st April, 1885, Messrs. Townshend, the agents for the mortgagees, wrote to Roulston a letter, in the following terms:—“Referring to letter which you have doubtless received from Messrs. Cookson & Co., of Lincoln's Inn, London, we beg to apply for payment of £65 10s., half-year's rent of Gortaquigley and Coolaghey, payable under lease to you of 30th October, 1880.”

On the 23rd April, 1885, Roulston wrote to Messrs. Townshend a letter:—“In pursuance of letter received from Messrs. Cookson & Co., and yours of the 21st inst, I beg to enclose my cheque for £62 18s., being the half-year's rent of Gortaquigley and Coolaghey, due 1st November last, less £2 12s. income-tax paid by me, for which I send the receipt.”

In 1887 a proposal was made by the tenant to purchase his holding, and on the 5th May, 1887, Messrs. Townshend wrote to Roulston as follows:—

“The solicitors to owners were prepared to consider favourably your proposal as to purchase, but there is some difficulty in the way with the Land Commissioners, and inquiries are now being made as to granting you a longer lease, at a rent to be mutually agreed on. Some tenants paying us rents have asked the owners to have a fair rent ascertained by two valuers sent down by the Land Commission called ‘Court valuers.’ We don't know what the owners would say to this course, even if you approved of it;—this course saves costs of valuers and solicitors.”

On the 24th April, 1889, Messrs. Townshend wrote to Roulston:—“We have heard from those interested in the lands of Gortaquigley, and we are instructed to say that, although they consider there is not the same necessity as there was last year for the allowance then given, they will be prepared if you wish a definite settlement made for the residue of the term to consider favourably an application to have the rent settled therefor at 15 per cent. under the rent reserved in your agreement, and also to give same allowance on rent due on its payment now.”

Two other letters from the Messrs. Townshend to Roulston were proved, one dated the 29th March, 1892, in the following terms:—“Enclosed I send receipt, with thanks. What would you think of making an offer to buy under the Balfour Act? You might then, as you wish, avoid going into the Land Court.”

The other was...