H. B. FOOT and E. T. WARREN, Executors of E. Carleton, Exch. Cham. v. K. WARREN, D. O'CALLAGHAN and others.* EJECTMENT for non-payment of rent reserved by a lease dated the 30th of July 1782.-Defence: That the lands were not, at the time of issuing of the plaint, nor at any time since, nor are now, holden of the plaintiffs, or either of them, by defendants, or any of them, or by any person or persons, as tenants or tenant to the plaintiffs, or either of them, as in plaint mentioned. Issue thereon in the terms of the defence. The action was tried at Cork, before Greene, B., at the Spring Assizes 1858; when the plaintiffs proved an indenture of lease dated the 7th of November 1769, and duly registered, by which J. Nash demised to W. Withers part of the lands of Geganath or Windsor, in the barony of Barretts and county of Cork, for the term of 993 years from the 29th of September 1769, E. T. 1859. By indenture in 1761, D. O'Callaghan, sen., demised lands to Nash for two lives, and such other lives as should for ever there after be added, pursuant to the covenant for perpetual renewal therein. In 1769, Nash demised the same lands to Withers for 993 years; and in 1782, Withlands to Atkins ers demised the for 950 years, at a profit-rent. Both the lives in the lease of 1761 being dead, that lease was renewed in 1794, to Nash's representatives, by C. O'Callaghan (heir-at-law of D. O'Callaghan, sen.), for the lives of two persons, the survivor of whom died in 1837. In 1807, C. O'Callaghan became assignee of Nash's interest. From 1823 to 1849, the assignees of Atkins' interest paid to D. O'Callaghan, jun. (heir-at-law of C. O'Cal * Coram LEFROY, C. J., PERRIN and O'BRIEN, JJ. Queen's Bench. FOOT v. WARREN. M. T. 1858. at the yearly rent of £128. 8s. 5d., Irish currency. This lease contained provisoes for distress and for re-entry, in the event of there being no sufficient distress upon the lands; and also contained a covenant that it should be lawful for Denis O'Callaghan, sen., under whom J. Nash derived, his heirs, &c., to enter and view the condition of the premises half-yearly; and also a covenant for quiet enjoyment, without interruption by the lessor, his heirs, executors, administrators or assigns, or any person claiming or to claim under him or them. The plaintiffs also proved an indenture of lease, dated 30th of July 1782, and duly registered, by which W. Withers demised the same lands to W. Atkins for 950 years from the 25th of March 1783, at the yearly rent of £200 Irish currency (equivalent to £184. 12s. 4d. sterling), with similar provisoes for distress and for re-entry in the event of no sufficient distress; and with similar laghan), as assignee of Nash's interest, the rent reserved by the lease of 1769, and The Irish statutable ejectment for non-payment of rent cannot be maintained upon a tenancy created by a parol demise from year to year, express or implied.— [PIGOT, C. B., dissentiente.] Notwithstanding the covenant for perpetual renewal, by D. O'Callaghan, sen., in the lease of 1761, and even assuming that Nash and his representatives were bound to keep up that lease by due renewals, in order to keep on foot the term of 993 years demised by Nash to Withers in 1769, the result, at Law, of the assignment of Nash's interest to the heir-at-law of D. O'Callaghan, sen., in 1807, was to merge the lease of 1761 and the renewal thereof in the reversion, and therefore, upon the fall of the lives in that lease and renewal, to destroy the term of 993 years, which depended thereon for its continuance, the doctrine of enlargement not being applicable to such a state of facts, so as to keep the term subsisting.-[PIGOT, C. B., dissentiente.] A tenancy which arises from overholding, and payment of rent after the expiration of a lease, is a parol tenancy from year to year, arising by implication of law, though regulated by such of the provisions of the expired lease as are applicable to a tenancy from year to year. The rule of Law, that, although the tenant is estopped from disputing the title of the landlord under whom he has taken possession, yet he is at liberty to show that the landlord's title has determined, applies to a statutable ejectment for non-payment of rent, as well as any other species of action. Per MONAHAN, C. J.-The 5 G. 2, c. 4, s. 4 (Ir.), applies only to surrenders of existing leases, and not to cases where leases have determined at Law. The object and effect of the Irish Ejectment Statutes considered. Thomas v. Packer (1 H. & N. 669; S. C., 3 Jur., N. S., 143; 26 Law Jour., Exch., 207) considered in reference to the Irish Ejectment Statutes. covenants for the inspection of the premises by W. Withers and the several head landlords, and for quiet enjoyment, as in the lease of 1769. The title of W. Withers was traced by the plaintiffs to Elizabeth Carleton his daughter; and it was proved that John Warren, who was tenant of the lands, and represented W. Atkins' interest under the lease of 1782, had, from 1823 to 1849, paid the yearly rents of £118. 10s. sterling to the defendant D. O'Callaghan, jun., the son and heir-at-law of C. O'Callaghan, and the grandson and heir-at-law of Denis O'Callaghan, sen., and of £66. 2s. 4d. sterling to the parties successively entitled under the will of W. Withers, viz., to his widow during her life, and, after her death, to his daughter Elizabeth Carleton, during her life; and, after her death, to the plaintiff E. T. Warren, her executor. These two rents amounted together to the rent of £184. 12s. 4d. sterling (equivalent to £200 Irish currency), reserved by the lease of 1782. But, from 1849, John Warren ceased to pay either of the said rents. The plaintiffs also proved the death of Elizabeth Carleton in 1847; and that they, as her executors, had duly proved her will; and they also gave in evidence the declaration in an action of covenant in 1852, for rent under the lease of 1769, against John Warren (therein averred to be assignee of the estate of W. Withers), by the defendant D. O'Callaghan, jun., as heir-at-law of his father C. O'Callaghan, therein averred to be assignee of the estate of J. Nash, by a deed alleged to bear date the 11th of February 1807, and to have been made between the trustees of the will of J. Nash and C. O'Callaghan, the father of the defendant D. O'Callaghan, jun. The defendants proved an indenture of lease dated the 26th of November 1761, between Denis O'Callaghan, sen. (the grandfather of the defendant D. O'Callaghan, jun.) and J. Nash, by which, after reciting that Denis O'Callaghan, sen., was, by virtue of a lease dated the 12th of August 1723, and several renewals thereof, legally entitled to the whole of the lands of Geganath or Windsor, for the lives of J. Bennett, W. Withers and himself, and of such other persons as should be thereafter nominated, pursuant to the covenant for perpetual renewal therein contained, the said Denis O'Callaghan, sen., demised to J. Nash (the lessor in the lease of 1769) the whole M. T. 1858. FOOT น. WARREN. FOOT บ. WARREN. M. T. 1858. of the lands of Geganath, for the lives of the said J. Nash and Queen's Bench. J. Lane, and of the survivor of them; provided the said J. Bennett, W. Withers and Denis O'Callaghan, sen., or any of them, should so long live, and during the lives of such other persons as should be nominated by J. Nash, as thereinafter mentioned, at the yearly rent of £241. 3s., Irish currency. In this lease was contained a covenant by J. Nash, for ever thereafter, upon failure of the lives in the head lease, therein recited, or any renewal thereof, to pay the fines payable under the head lease, and to indemnify Denis O'Callaghan, sen., his heirs and assigns, therefrom; and a covenant by Denis O'Callaghan, sen., that it should be lawful for J. Nash, his heirs and assigns, within six months after the death of either of the lives therein named, or of any of the lives to be thereafter named, if such death happened within the kingdom, and within four months after notice of such death, if it happened out of the kingdom, to nominate any new life or lives, by indenture to be affixed to the lease and its counterpart, or otherwise, and thereupon and upon payment of all arrears of the rent thereby reserved, and of all fines reserved by the head lease, that the demise then made should continue, and J. Nash, his heirs and assigns, should enjoy the lands for such life and lives for ever thereafter against the said Denis O'Callaghan, sen., his heirs and assigns, provided that the life or lives so to be added should not be the same life or lives as in the head lease. This lease also contained a proviso that, on default by the lessees thereunder in payment of the fines in the head lease for two years after they became due, it should be optional with Denis O'Callaghan, sen., his heirs and assigns, to renew or avoid the lease. The defendants also proved a renewal of the lease of 1761, in 1794, by C. O'Callaghan, the heir-at-law of Denis O'Callaghan, sen. (the lessor in 1761), to the trustees of the will of J. Nash, for the lives of F. Arthur and S. Roche, in lieu of the lives of J. Nash and J. Lane, both of whom were therein recited to have been long since dead. It was admitted that S. Roche, who survived F. Arthur, died in 1837, and that the defendant D. O'Callaghan, jun., was the son and heir-at-law of the said C. O'Callaghan. The defendants also gave in evidence the proceedings in an action of ejectment by the defendant D. O'Callaghan, jun., in 1851, for non-payment of the rent reserved by the lease of 1769, to recover the lands demised by that lease; and proved that the defendant D. O'Callaghan, jun., on the 25th of March 1851, obtained possession of the lands under an habere issued on the judgment obtained in the action, and subsequently let to Harding, one of the defendants in the present action; but that ejectment, although served on John Warren and the occupying tenants, was not served upon the present plaintiffs, the assignees of the tenant, as required under the Process and Practice Act, by the 251st of the General Orders of 23rd December 1850. It was also proved that the arrear of rent, sued for in that ejectment, was not paid, and that there was not any distress upon the lands sufficient to satisfy it, at the time of executing the habere, or within a year after. The defendants also gave in evidence the proceeding in a crossLejectment on the title by the present plaintiffs in 1856, to recover back the lands, the possession of which the defendant D. O'Callaghan, jun., had so obtained by the ejectment in 1851; and it appeared that the verdict had for the defendants in the ejectment in 1856, on the ground that there was an outstanding mortgage by W. Withers in 1783, was set aside, and a new trial granted; but that no further step had been taken in that action. The learned Judge having directed the jury, on these facts, to find for the plaintiffs, the defendants thereupon excepted, and also called upon his Lordship to tell the jury that, if they believed the evidence of the defendants, they ought to find for them; and, his Lordship having declined so to do, the defendants thereupon excepted.* Separate exceptions were taken by the defendants D. O'Callaghan, jun., and H. Harding, who held by lease from the defendant D. O'Callaghan, jun. • NOTE.-The following points were noted for argument on the part of the defendants :-First, that, on the foregoing facts and documents, ejectment for non-payment of rent could not be maintained. Secondly. That the defendant D. O'Callaghan, jun., having got possession of the premises comprised in the lease of 1782, the defendants were now entitled to avail themselves of the forfeiture incurred by the non-payment of the rent reserved by the lease of 1769. M. T. 1858. FOOT v. WARREN. |