Ferguson & Company v Ferguson
| Jurisdiction | Northern Ireland |
| Judgment Date | 08 November 1924 |
| Docket Number | (1923. No. 38.) |
| Date | 08 November 1924 |
| Court | Court of Appeal (Northern Ireland) |
Appeal. (N. I.)
Lease - Forfeiture - Liquidation - Relief against forfeiture - "Lease of agricultural or pastoral land" - Sale within a year of forfeiture - Conveyancing Act, 1881 (44 & 45 Vict. c. 41), sect. 14, sub-ss. 1, 2, 6; Conveyancing Act, 1892 (55 & 56 Vict. c. 13), sect. 2, sub-ss. 2, 3.
Action claiming that the defendant was not entitled to enforce a forfeiture for breach of covenant in a lease
By a lease dated November 12th, 1917, the defendant, Jane Ferguson, demised to the plaintiffs, Robert Ferguson & Co., Ltd., thirty-seven acres and two roods of the lands of Slatt, in the Barony of Antrim Lower, and County of Antrim, for a term of fifty years at the yearly rent of £150, payable half-yearly. The proviso for re-entry was in the following terms: "Provided that if the said yearly rent of £150 or any part thereof shall be in arrear for the space of thirty days . . ., or, if the company shall enter into liquidation, whether compulsory or voluntary, it shall be lawful for the lessor at any time thereafter into and upon the demised premises or any part thereof in the name of the whole to re-enter, and thereupon the said term hereby created shall absolutely determine." The lessees entered into possession, and carried on their business on the premises.
The defendant was a member of the plaintiff company, and held certain shares therein, jointly with other members of her family. On 11th April, 1922, an extraordinary general meeting of the plaintiff company was held, and a resolution was duly passed to wind up the company voluntarily, and appointing Mr. Hugh Boyd as liquidator for such purpose.
The company was a private company, consisting of the defendant and the members of her family. After the execution of the lease the defendant and other members of her family continued to reside in the dwelling-house on the demised premises, and to work portion of the land, without paying any rent to the company.
On 20th October, 1922, the liquidator gave notice to the defendant of his intention to offer the demised premises for sale by public auction, and demanded from the defendant clear possession of the dwelling-house and premises.
On 3rd November, 1922, the defendant's solicitors replied to the notice stating that the defendant declined to give up possession, but making no reference to the intended sale. On 23rd November, 1922, the plaintiff company issued a writ for recovery of the premises, and on 17th January, 1923, judgment for recovery thereof was entered by the plaintiffs in default of appearance.
On 9th February, 1923, a notice by the defendant and by Albert L. M'Clelland and Joseph Ferguson was served upon the liquidator and the company, alleging that by an indenture dated 18th November, 1920, all the estate and interest of the defendants under the lease had been assigned to and become vested in the said Albert L. M'Clelland and Joseph Ferguson, and, further, alleging that the plaintiffs had not paid the rent reserved by the said lease, and that the sum of £900 was then due for such rent, and that the company. had accordingly committed a breach of the covenants in the said lease, and, further, that the company had entered into liquidation, and thereby committed a breach of the said covenant; and requiring the company and the liquidator to remedy the said breaches in so far as the same might be remedied, and to pay the sum of £900 for arrears of rent, and also compensation for the breach of covenant against liquidation; but they contended that this last-mentioned breach was not legally capable of being the subject of monetary compensation. The plaintiffs claimed a declaration that the defendant was not entitled to enforce the right of re-entry or forfeiture contained in the lease; or, in the alternative, relief against such right of re-entry or forfeiture, upon such terms as the Court should deem just.
On 12th February, 1923, the liquidator offered the premises for sale by auction, and the same were sold to Samuel M'Cord for the sum of £3,500, and an agreement for purchase was duly signed by the purchaser subject to conditions of sale, one of which provided for rescission of the sale in the event of the plaintiff company and the liquidator not being relieved by the Court from any forfeiture.
Wilson J. held that the lease of 12th November, 1917, notwithstanding the demise of the factory and machinery, was a lease of agricultural or pastoral lands within the meaning of sect. 2, sub-s. 3 (a), of the Conveyancing Act, 1892, and that therefore the plaintiffs were not entitled to the relief sought.
The plaintiffs appealed to the Court of Appeal of Northern Ireland (1).
R. F. & Co., the appellants, lessees of thirty-seven acres and a half of land in the County of Antrim, on which a factory and certain other buildings were erected, went into liquidation. and thereby incurred a forfeiture for breach of covenant in the lease. The liquidator, in order to obtain relief against the forfeiture under sect. 14, sub-ss. 1, 2, 6, of the Conveyancing Act, 1881, and sect. 2, sub-ss. 2, 3 (a), of the Conveyancing Act, 1892, entered into a conditional contract for sale within one year from the date of the liquidation.
In an action by R. F. & Co., Ltd., claiming that the defendant was not entitled to enforce a right of...
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