Stevelly v Murphy

• Jurisdiction: Ireland
• Judgment Date: 06 June 1840
• Date: 06 June 1840
• Court: Rolls Court (Ireland)

Stevelly

and

Murphy.

CASES

IN THE

COURTS OF CHANCERY, ROLLS, AND

EQUITY EXCHEQUER.

CHANCERY.

RECEIVER — FEE-FARM RENT.

By deed bearing date in the year 1714, one John Haman conveyed certain premises in the city of Cork to Elias Laserre, and his heirs, for ever; reserving to the said John Haman, and his heirs, a perpetual yearly rent of £19. 17s. The deed contained a covenant for payment of the rent, and clauses of distress and re-entry in case of non-payment within sixty days after each gale day.

The bill in this cause, after setting out the above-mentioned deed, charged that ldquo;all the estate and interest of the said John Haman in the said fee-farm rent had come to and legally vested in the plaintiff, and that all the estate, &c., of the said Elias Laserre of and in the said premises had come to and vested in the defendant;"* and that the defendant, as assignee of the premises, had paid rent to the plaintiff, as assignee of the rent; and that two years’ rent, to the 29th of September then last past, was due. It further charged, that the plot of ground specified in the deed of 1714 had undergone various alterations in the boundaries and descriptions thereof; and that houses had been erected partly upon the said premises and partly upon the adjoining ground, so as to confuse the boundaries.—That there neither was, nor had been for the last two years, any sufficient distress upon the premises; and that there were various outstanding legal terms, with the particulars of which the plaintiff was unacquainted, but which would or might be set up to defeat his rights in a Court of law.

The bill prayed that the said fee-farm rent might be decreed well charged upon the premises; that an account might be taken of the amount due to the plaintiff; that the defendant should pay such amount to the plaintiff, or in default thereof that the premises or a competent part of them might be sold, and the plaintiff paid out of the produce of the sale; that, in the mean time, a receiver should be appointed, and be directed to pay to the plaintiff the arrears of the said rent, and his costs in this cause, and the accruing gales of rent; and, for that purpose, that the receiver, so to be appointed, might be retained.

The defendant's answer admitted the plaintiff's title, and that the defendant was in possession of the premises as assignee of lessee's interest, and that the amount claimed was due It further admitted that there had been some confusion of boundaries as in the bill stated, but denied that there had not been any sufficient distress upon the premises for the last two years: and submitted that it appeared by the plaintiff's own shewing that his proper remedy was at law, and that the plaintiff had not shewn he was entitled to the trusts of the legal estates which he stated to be outstanding; and, therefore, that the person capable of giving a legal discharge for the rent did not appear to be before the Court.

Mr. W. Brooke, Q C., with whom was Mr. Berkeley, now moved for a receiver upon the bill and answer.—Manley v. Hawkins (a) should govern this case: there is no sound distinction between a rent-charge and a fee-farm rent, at least as respects the right of the grantee to recover in a Court of Equity. Since the act of 4 G. 2, c. 26, s. 5, which gives the remedy by distress for a rent of this description, it is to all intents and purposes a rent charge. The ancient date of the creation of this rent (A. D. 1714), and the great difficulty which must attend the pleadings in any action for its recovery, should of themselves be sufficient to justify the interference of a Court of Equity as in the case of bills on the solet, and make this an a fortiori case to that an annuity or rent-charge. The difficulty in the way of a legal proceeding, from the admitted fact that the original boundaries have been altered and defaced, has in many cases been held sufficient reason for coming into a Court of Equity; Collet v. Jaques (b).

Mr. Lane for the defendants.—This is the first instance in which it has been attempted to obtain a receiver over an interest of this description. The case of Hanley v. Hawkins and the other cases of annuity cited by the counsel on the other side have no application to a case like the present, which is one between landlord and tenant, and in which all the usual remedies—covenant to pay, distress, and re-entry—exist. Any of those remedies might have been pursued at law, and nothing is clearer than that this Court will not encourage a party to put another to the expense of an equity suit, where his demand may have been satisfied in a Court of Law, by a much cheaper and more expeditious proceeding.

That the plaintiff has a clear right to proceed at law, either upon the covenant, or by distress, or re-entry, has not been denied; and it has never been held that a mere difficulty of law pleading, which is all that can

be alleged here, is a sufficient reason for coming into a Court of Equity for relief. The effect of the success of a such a motion as the present would...