Smith v Whitmore

• Jurisdiction: Ireland
• Judgment Date: 10 July 1896
• Docket Number: (1894. No. 65.)
• Date: 10 July 1896
• Court: Chancery Division (Ireland)

Smith

and

Whitmore.

V.-C.

(1894. No. 65.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1896.

Lease — Covenant against alienation without consent in writing of landlord — Consent in letter of agent — Authority of agent — Landlord and Tenant Law Amendment Act (Ireland), 1860 (23 & 24 Vict. c. 154), s. 10 Married Woman — Sale of interest in leasehold — No deed acknowledged Expiration of lease — Statutory tenancy — Graft Circumstances disentitling to enforce equity.

A lease contained a covenant that the lessee should not, without the express consent in writing of the landlord, assign the lands. By settlement on his marriage the lessee purported to assign them to trustees on certain trusts. Evidence was given that previous to the marriage the landlord's agent wrote a letter to the lessee, stating that the agent had got the landlord's consent to allow the place to be settled on the intended wife:—

Held, that section 10 of the Landlord and Tenant Law Amendment Act (Ireland), 1860 (23 & 24 Vict. c. 154), applied; and that, as there was no consent testified as required by that section, the settlement was void.

In re Ulster Permanent Building Society and Junior Army and Navy Stores (13 L. R. Ir. 67) distinguished.

A married woman, entitled under her marriage settlement to an equitable life estate, in remainder expectant on her husband's death, in a leasehold for years, joined her husband, though not by deed acknowledged, in selling the lands. She took an active part in the sale and the application of the purchasemoney, portion of which she herself received and retained. Her husband died in 1886. The lease expired in 1889; and in 1891, on the application of the purchaser's administratrix, who continued in possession, a fair rent was fixed. In 1894 the widow, alleging that the sale was void as against her, brought an action to have the statutory tenancy declared a graft on the leasehold interest, and subject to the trusts of the settlement. She made no offer to return the purchase-money:—

Held, that the widow was not, under the circumstances, entitled to enforce the equity claimed.

Action.

The statement of claim alleged:—By lease, dated the 22nd February, 1859, Viscount Powerscourt demised to Thomas Smith part of the lands of Ballyrory, in the county of Wexford, for thirty-one years, from the 25th March, 1858, at a rent of £150. By a settlement, dated the 20th November, 1863, and made on the marriage of the plaintiff with Thomas Smith, the latter assigned the lands to trustees, in trust for himself for life, with remainder for the plaintiff for life, with remainder, if there should be no child of the marriage (which event happened), for the executors or administrators of Thomas Smith, for the benefit of his next-of-kin at his death. Thomas Smith sold his interest in the lands to William Whitmore in July, 1884. No assignment was executed, but William Whitmore went into possession; he died in 1885. Thomas Smith died in February, 1886. The defendant, in February, 1888, as administratrix of William Whitmore, served an originating notice to have a fair rent fixed; and in August, 1891, an order was made by the Land Commission, fixing the fair rent at £140. One of the trustees was dead. The plaintiff claimed a declaration that the statutory tenancy under the fair rent order was a graft on the interest under the lease, and was subject to the trusts of the settlement, or, in the alternative, a declaration that she had established her title, as against the defendant, to an estate for life in the lands.

The defence stated:—The lease contained a covenant that the lessee, his executors, administrators, and assigns, should not, without the express consent or permission in writing of Viscount Powerscourt, his heirs or assigns, sell, assign, alien, sublet, or otherwise dispose of the demised lands and premises, or any part thereof, or in any manner part with the possession of same, or any part or parcel thereof, or bequeath the same by will to more than one child or other person, or divide same in any manner among his children or next-of-kin, or other persons. The landlord did not give his consent or permission in writing to the settlement. About the 1st July, 1884, Thomas Smith and the plaintiff caused the lands to be put up for sale by public auction, and William Whitmore became the purchaser for £900 and auction fees. He signed an agreement in writing, dated the 1st July, 1884, to purchase, and Thomas Smith and the plaintiff signed the same, and thereby agreed to the said sale. William Whitmore paid his purchase-money, and entered into possession. He died in April, 1885, and in August of that year letters of administration to his estate were granted to his widow, the defendant. She entered into possession, and on her application the fair rent was fixed.

The plaintiff replied that there was no contract or conveyance by the plaintiff by deed acknowledged, and also that the landlord did not consent to the sale to William Whitmore.

The following are the most material portions of the evidence:

The plaintiff deposed:—About three years before my marriage I knew of the lease to Thomas Smith. He had previously proposed marriage to me. I saw a letter from Mr. Kincaid, Lord Powerscourt's agent, to Thomas Smith. I am unable to find the letter. Mr. Kincaid said in it that he got Lord Powerscourt's consent to allow the place to be settled on me. I brought infra, p. 525.] That is also my signature; the document never was read for me; I did not know what it meant. [This was the agreement for sale at the end of the conditions, see infra, p. 526.] The purchase-money was paid to Warren. Portion of it was applied in payment of the rent, and of poor rates and county cess. That is my signature.

[Cheque dated the 4th October, 1884, for £50, drawn by Warren on account of the sale, payable to Thomas Smith, indorsed by him payable to the plaintiff, and indorsed by her.] The lands, crops, and all realized £984 7s. 3d. The balance was lodged in bank on deposit receipt in the joint names of my husband and myself; it might be £543 1s. 5d.; it was paid by cheque. That is my signature. [Auctioneer's ledger, with account of distribution of the purchase-money in payment of expenses, rent, rates, debts, &c., with an acknowledgment at foot of...