Winder, Tenant; Verschoyle, Landlord

• Jurisdiction: Ireland
• Judgment Date: 19 June 1911
• Date: 19 June 1911
• Court: Court of Appeal (Ireland)

Winder

Tenant

and

Verschoyle

Landlord.

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1911.

Land Law (Ir.) Acts — Fair rent application — Incorporation of land held under lease with demesne by the common owner of the leasehold interest and demesne — Subsequent severance of title — Land. Law (Ir.) Act, 1896, sect. 5, sub-sect. (1) b (ii) and (iii).

1. When the owner of a demesne who held adjoining lands under a lease incorporated the leaseholds with the demesne, and afterwards conveyed the demesne to one purchaser and assigned the leaseholds to another: Held, that the leaseholds were undemesned by the severance of the unity of possession of the demesne and the leaseholds.

2. Section 5, sub-section (1) b (ii), of the Land Law (Ireland) Act, 1896, excluding from the operation of the Land Law Acts any tenancy in a holding substantially consisting of “land which when first demised was demesne, and which the provisions of the contract of tenancy or the circumstances of the case show was intended to be preserved as demesne or resumed as demesne by the landlord,” applies to the case of a landlord who has parted with portion of his demesne by a demise with the intention of preserving or resuming it as demesne, and not to the case of an owner of a demesne who has added thereto adjoining land of which he was tenant, which latter case comes within the provisions of sub-clause (iii) of sect. 5 (1) b.

This was an appeal by the landlord and cross-appeal by the tenant, from an order of Fitz Gerald, J., dated 21st March, 1911, fixing a fair rent on the lands of Kilberry, in the county Kildare, containing 64 acres, which immediately adjoins the demesne of Bert, formerly the seat of the Burgh family. By a lease dated the 30th December, 1770, Francis Brown demised to William Burgh of Bert part of the lands of Kilberry, containing 101a. 3r. 20p. at the yearly rent of £91 10s., with a covenant for renewal; but it did not appear whether or not this lease was ever renewed. By a lease dated the 20th February, 1809, Richard Verschoyle demised to Thomas Burgh part of the lands of Kilberry, being the holding now before the Court, for the term of twenty-one years, at the yearly rent of £23 7s. By a lease dated the 3rd April, 1825, Robert Verschoyle demised the holding to Sir Ulysses Burgh of Bert for a further term of twenty-one years, at the rent of £23 7s. 4d., and by a further lease dated the 3rd January, 1846, Robert Verschoyle demised the holding to the said Ulysses Burgh, then Lord Downes, for a term of three lives, or thirty-one years, at the rent of £53 9s. 10d., under which lease the lands were held at the date of the originating application. Prior to this lease the holding of Kilberry, at least one-fourth of which was planted with ornamental timber, had been incorporated with the demesne of Bert, and so continued until the sale of the latter in 1909, hereinafter mentioned. Lord Downes died in 1863, and was succeeded in his estates in the county Kildare, including the mansion-house and demesne of Bert, and the adjoining holding of Kilberry, by Lord Seaton, who died in 1888, and was succeeded in the said estates by his son, the present Lord Seaton. Prior to the year 1909 the latter sold all his estates in Kildare to the occupying tenants under the Land Purchase Acts, save the mansion-house and demesne of Bert, which were held in fee-simple, and had been for a number of years let to a Mrs. Geoghegan, and the said holding of Kilberry, which had also for a number of years been sublet under an agistment contract at a lesser rent than that reserved by the lease of 1846. Lord Seaton, wishing to dispose of all his land in Ireland, sold the mansion-house and demesne of Bert to Mrs. Geoghegan, the conveyance to her being executed on the 11th November, 1909; but Mrs. Geoghegan refused to become assignee of the holding of Kilberry, although Lord Seaton offered it to her without additional payment. Lord Seaton thereupon instructed his solicitor, Mr. Figgis, to sell the holding of Kilberry, if possible, or to find someone to take it off his hands, and finally an assignee was found by Mr. Figgis, in Henry Winder, to whom the holding of Kilberry was assigned, on the 4th February, 1910, for a nominal consideration, Winder covenanting to keep Lord Seaton indemnified against the rent and covenants in the lease of 1846. On the 22nd February, 1910, Winder served the originating notice in the present case, and, on the County Court Judge dismissing the application, appealed to Fitz Gerald, J., who fixed a fair rent on Kilberry, the portion thereof which had been planted with ornamental timber being valued as agricultural land. Hence this appeal, and a cross-appeal by the tenant.

S. L. Brown, K.C., and Meredith, K.C., for the landlord:—

[They contended that the assignment to Winder was a colourable transaction to enable a fair rent to be fixed, that Winder was not in bona fide occupation of the holding, and that the holding was not agricultural or pastoral in its character.] We rely on the provisions of section 5 (1) and (2) of the Act of 1896, as excluding this holding from the Land Acts. It is clear that the holding was “first demised” by the lease of 1846: Simpson v. Farley (1), and that at the date of that demise the holding was demesne, having been incorporated with the demesne of Bert. Both the circumstances of the case and the provisions of the lease of 1846, which contains a covenant not to be found in the former leases, viz., to preserve the trees, and under which the rent was greatly increased, show clearly that this holding was intended to be preserved as demesne. Sub-clause 2 applies to lands which by the action of either the landlord or tenant had become demesne when “first demised”; sub-clause 3 applying to lands not demesne when first demised, but incorporated in a demesne by the tenant. If this holding comes under sub-clause 2, no severance of Bert from Kilberry by Lord Seaton can enable a fair rent to be fixed.

James O'Connor, K.C., and T. H. Maxwell, for the tenant:—

The second sub-clause of section 5 (1) b has no application. There cannot be a demesne at large; it must be either landlord's

demesne or tenant's demesne; and sub-clause 2 shows clearly by its wording that it relates solely to landlord's demesne. No doubt the holding of Kilberry was incorporated with Bert demesne, but on the conveyance of Bert to Mrs. Geoghegan the unity of possession became severed, and Kilberry was no longer demesne: Watson v....