Wallace v Daly and Company Ltd

• Jurisdiction: Ireland
• Judgment Date: 30 July 1949
• Date: 30 July 1949
• Court: Supreme Court

Supreme Court.

Wallace v. Daly & Co. Ltd.

MICHAEL WALLACE

Plaintiff

and

JOHN DALY AND COMPANY, LIMITED, Defendants (1)

Landlord and tenant - Ejectment - Pleadings - Action in Circuit Court claiming ejectment on the title - Defence - Denial of plaintiff's title to premises - Disclaimer - Defendant subsequently setting up leasehold interest as tenant to plaintiff - Plaintiff claiming to forfeit defendants' lease by reason of disclaimer - Effect of disclaimer by record - Defence amended, upon terms - Defendant admitting that amendment should not cure forfeiture - Effect of amending the record - Time at which forfeiture worked by disclaimer - Circuit Court Rules, Or. VII, r. 4; Or. XXXII, r. 9.

Case Stated by Black J. (sitting as a Judge of the High Court on Circuit), pursuant to s. 28, sub-s. 3, of the Courts of Justice Act, 1936, for the determination by the Supreme Court of questions of law arising on the. hearing of an appeal by the defendants from the judgment given herein on the 20th June, 1946, by the Circuit Court Judge of the South Western Circuit.

The facts are fully set out in the Case Stated, which was as follows:—

"1. The defendants appealed to the High court on Circuit, sitting at Limerick, on the 12th July, 1946, from the whole of the Judgment of the Circuit Court Judge given herein on the 20th June, 1946, in ejectment proceedings on the title to recover possession of a stable and archway situate at Henry Street, in the City of Limerick.

2. The premises in dispute consist of a stable and archway, situate on the ground floor, and forming part of the premises now known as Nos. 2 and 3 Henry Street, Limerick, and formerly known as No. 4 Henry Street. The premises are shown on the map of the plaintiff's engineers, Messrs. Kearney & O'Sullivan, which is incorporated herewith. The plaintiff carries on business as a boot and shoe maker and resides with his family at Nos. 2 and 3 Henry Street, Limerick. For many years prior to the year, 1930, the plaintiff and his predecessors held the said premises as quarterly tenants to the Carmody Estate, but their tenancy did not include the stable and archway on the ground floor of the premises and these were in the possession of the defendants or their predecessors as tenants to the same landlords as the plaintiff and his predecessors.

3. The defendants carry on a bakery business at Sarsfield Street, Limerick, in premises part of which consists of stables and yard adjoining the back of the plaintiff's premises, and the entry to the defendants' yard and stables is by the archway in dispute running under the plaintiff's said premises. The defendants' title to the said archway and the stable on the ground floor of the plaintiff's premises commences with a lease, dated the 3rd February, 1906, made between James Joseph Desmond Carmody, of the one part, and Mary Carmody and Agnes Dorothy Carmody, of the other part, whereby (inter alia) the stable on the ground floor of the plaintiff's premises, together with the exclusive use and enjoyment for the lessees of the archway leading from Henry Street to the other premises demised by the lease were demised to the said Mary Carmody and Agnes Dorothy Carmody for the term of 853 years from the 29th September, 1895. By an indenture of assignment dated the 4th March, 1912, and made between the said Mary Carmody and Agnes Dorothy Dodson (formerly Agnes Dorothy Carmody), of the first part, J. Bannatyne & Sons, Limited, of the second part, and J. N. Russell & Sons, Limited, of the third part, the premises demised by the said lease were assigned to the said J. N. Russell &. Sons, Limited, by indenture of assignment dated the 2nd May, 1912, and made between the said J. N. Russell & Sons, Limited, of the one part and John Daly, of the other part, the premises demised by the said lease were assigned to the said John Daly. By his will, dated the 1st May, 1916, the said. John Daly bequeathed all his property real and personal (which included the premises demised by the said lease) to his niece, Margaret Daly. The said John Daly died on the 30th June, 1916, and probate of his said will was on the 15th September, 1917, granted forth of the District Probate Registry at Limerick to the said Margaret Daly, the sole executrix therein named.

4. In the year, 1930, the plaintiff purchased the fee simple interest in the premises, Nos. 2 and 3 Henry Street, from his landlord and the same was conveyed to him by a conveyance, dated the 14th November, 1930, between the Commercial Union Assurance Company, Limited, of the first part, James Joseph Desmond Carmody, of the second part, and the plaintiff, of the third part.

5. In the year, 1931, the said Margaret Daly, otherwise known as Madge Daly, the defendants' predecessor in their said business, purchased from the common landlord of the plaintiff and the defendants the fee simple interest in the premises then held by the said Madge Daly as tenant to the said landlord under the above-mentioned lease of the 3rd February, 1906. The conveyance is dated the 24th August, 1931, and made between James Joseph Desmond Carmody, of the one part, and Madge Daly, of the other part, and by reference to the map endorsed thereon the said conveyance purports to convey to the said Madge Daly the fee simple interest in the stable in dispute and which had previously been conveyed as part of the premises, Nos. 2 and 3 Henry Street, to the plaintiff by the same grantor by the conveyance, dated the 14th November, 1930. By conveyance, dated the 17th April, 1945, all the estate and interest of the said Madge Daly under the said lease, dated the 3rd February, 1906, and the said conveyance, dated the 24th August, 1931, became vested in the defendants.

6. Since the year 1930, up to the date of these proceedings, the plaintiff has been in possession of the premises, Nos. 2 and 3 Henry Street, save the stable and archway on the ground floor thereof now in dispute, and this stable and archway have been in the possession of the defendants. No rent has been paid by the defendants to the plaintiff in respect of the stable and archway, and rent was not demanded by the plaintiff who remained ignorant of the defendants' title to the said premises.

7. On the 10th April, 1946, the plaintiff caused an ejectment civil bill on the title to be issued against the defendants, claiming the recovery of possession of the stable constituting part of the ground floor of No. 3 Henry Street. The defendants entered an appearance to the said civil bill on the 12th April, 1946, and by their defence, dated the 13th April, 1946, and filed in the action, the defendants pleaded: '1, the defendants are in possession of the premises sought to be recovered; 2, the defendants deny that the stable mentioned in the indorsement of claim formed part of No. 3 Henry Street, Limerick, as alleged, or at all; 3, the said stable is not the property of the plaintiff; 4, the plaintiff's right and title (if any) to the said premises have been extinguished by the Statutes of Limitation.

8. Before the hearing of the action in the Circuit Court the plaintiff served the defendants with a notice of motion, dated the 30th April, 1946, for liberty to amend the said civil bill by deleting in the indorsement of claim the words, 'the stable constituting part of the ground floor,' and substituting therefor the words, 'the stable and archway constituting the ground floor,' and at the subsequent hearing in the Circuit Court the said civil bill was by consent amended accordingly and the defence was amended by including the words, 'and archway,' immediately after the word, 'stable,' therein.

9. The action came on for hearing on the 11th May, 1946, before the Circuit Court Judge for the South Western Circuit, sitting at Limerick, when the amendments to the pleadings mentioned in paragraph 8 hereof were made by consent and, after hearing the evidence of the plaintiff's engineer, and the plaintiff having put in evidence the conveyance, dated the 14th November, 1930, made between the Commercial Union Assurance Company, Limited, of the first part, James Joseph Desmond Carmody, of the second part, and the plaintiff, of the third part, whereby the fee simple estate in the premises, Nos. 2 and 3 Henry Street, became vested in the plaintiff, and the defendant having put in evidence the lease, dated the 3rd February, 1906, between James Joseph Desmond Carmody, of the one part, and Mary Carmody and Agnes Dorothy Carmody, of the other part, and also .the conveyance, dated the 24th August, 1931, between James Joseph Desmond Carmody, of the one part, and Madge Daly, of the other part, the further hearing of the action was on the application of counsel for the defendants adjourned until the June Sittings of the Court to enable the defendants to serve a notice of motion for leave to amend their defence.

10. The adjourned hearing of the action came on before the said Circuit Court Judge at Limerick on the 20th June, 1946, when the defence was amended by consent of the plaintiff given upon terms that the defendants admitted that the amendments did not cure any forfeiture of the lease of the 3rd February, 1906. The amendments consisted of the alteration of the plea of possession, in paragraph 1, to a plea of possession under the lease, dated the 3rd February, 1906, and the deletion of the other paragraphs in the defence. The learned Circuit Court Judge found that the lease of the 3rd February, 1906, had suffered a forfeiture and an order for possession of the stable and archway was made in favour of the plaintiff.

11. On the hearing of this appeal before me at Limerick on the 12th July, 1946, and in Dublin on the 4th and 5th March, 1947, the defendants claimed to hold the premises in dispute under the lease, dated the 3rd February, 1906, and on behalf of the plaintiff it was contended that the said lease was forfeited by the pleas contained in the defendants' defence, dated the 13th day...