Stevenson, Landlord; Parker, Tenant

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

Stevenson,

Landlord

and

Parker,

Tenant (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 Act — Covenant against alienation — Statutory prohibition — 7 Geo. 4, c. 29 (Ir.).

By lease, dated the 2nd April, 1827, the lands of Kilgreel in the county of Antrim, containing 60a. 2r. 6p., were demised to B. for three lives, or thirty-one years, and the lease contained a covenant against alienation without the consent in writing of the lessor. By an agreement in writing, dated the 19th December, 1856, S. (in whom the interest of B. was vested) agreed to grant to M. P., the elder, portion of the said lands, comprising 10 acres, for seven years from the 1st November, 1856, at the rent of £30. M. P. the elder continued in possession down to the date of his death, which happened in 1877, and after his death M. P., his eldest son, remained in possession, paying the rent and receiving the receipts in his own name. There was no evidence given by either landlord or tenant as to whether the head landlord had consented in writing, or at all, to the subletting to M. P. the elder, or that the subletting ever came to his knowledge. On the 30th April, 1892, M. P. served a notice to fix a fair rent upon S., which was dismissed by a Sub-Commission. On appeal the Land Commission, being of opinion that it was competent for them to presume that a deed had been executed releasing the covenant, reversed this decision. On a case stated for the Court of Appeal:—

Held (reversing the decision of the Land Commission), 1, that it was not competent to presume that a deed had been executed releasing the covenant;; and 2, such a release would not affect the prohibitive clause in the statute 7 Geo. 4, c. 29.

Case Stated by the Land Commission.

The landlord, Thomas Stevenson, held this holding along with other lands, containing in all 60a. 2r. 6p. statute measure, under the Rev. Arthur Pakenham, by lease dated the 2nd April 1827, for the term of three lives or thirty-one years. The lease contained a covenant not to alien, set, or assign the whole or any part of the lands without the consent under the hand and seal of the landlord.

By an agreement in writing dated the 19th December, 1856, made between the said Thomas Stevenson of the one part, and Matthew Parker the elder, the father of the tenant, the landlord agreed to grant, and Matthew Parker the elder agreed to accept, a lease of the present holding comprising 10 acres for seven years from the 1st November, 1856, the rent to be £30, and the landlord to pay all taxes. Matthew Parker continued in possession of the holding after the expiration of the period of seven years, and down to the date of his death, which occurred in 1877. After his death Matthew Parker, his eldest son, remained in possession at the rent of £30 a-year, obtaining the rent receipts in his own name.

There was no positive evidence given by either landlord or tenant as to whether or not the head landlord had consented in writing or under seal, or at all, to the subletting to Matthew Parker, the elder, or the present tenant, nor was it proved that such sub-letting ever came to his knowledge. On the 30th April, 1892, the tenant served an originating notice to fix a fair rent, which was dismissed by a Sub-Commission by an order dated the 24th June, 1893. The tenant by notice dated the 1st August, 1893, required his case to be re-heard. The Land Commission were of opinion that it was competent for them under the circumstances to presume that a deed had been executed by the head landlord releasing the covenant against sub-letting at a date prior to the 19th November, 1856, or that a consent to this subletting had been given by him under his hand and seal. They accordingly found that such a deed had been executed, or such a consent had been given, and were of opinion that the order of the Sub-Commission should be reversed, and the case remitted to them to fix a fair rent, but they submitted for the decision of the Court of Appeal the question—Whether they were at liberty on the facts stated to presume that either such a deed of release had been executed or such a consent under hand and seal had been given?

Campbell, Q.C., and R. F. Harrison, for the landlord:—

If the lessee of a lease not containing a clause permitting alienation, and made after the 1st June, 1826, sublets any part of the demised premises without such consent as required by 7 Geo. 4, c. 29, the sub-lease so made is void, and not merely voidable at the election of the original lessor: Troy v. Kirk (1); Bowman v. Catherwood (2). Mere standing by with knowledge is not consent: Doe v. Allen (3); Willmott v. Barber (4). Moreover the head landlord is not here, and this decision would bind him. Lost deeds have only been presumed inter partes. The rule as to waiver does not apply where there is a continuing breach: Tennent v. Neil (5). But the deed releasing the covenant would be of no avail, as the provisions of sect. 3 of 7 Geo. 4, c. 29 would apply. [They referred to Coffey's Estate (6); Jagoe v. Harrington (7); Meares v. Redmond (8).]

Hynes, for the tenant:—

The onus of proof is on the person who asserts the illegality, and not on the sub-tenant. There is a presumption in favour of...