John Archbold, - Appellant; William Scully, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 25 April 1861 |
| Date | 25 April 1861 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 769
House of Lords
Mews' Dig. viii. 1251; ix. 150, 153, 324; xiv. 1739. S.C. 7 Jur. N.S. 1169; 5 L.T. 160; and, below, 8 Ir. Ch. R. 177. Cited in Webster v. Southey, 1887, 36 Ch.D. 19.
Renewable Leases - Statute of Limitations - Acquiescence - Landlord and Tenant - Trust - Costs - 3 and 4 Will. 4, c. 27.
JOHN ARCHBOLD,-Appellant; WILLIAM SCULLY,-Respondent [March 5, 7, April 25, 1861]. [Mews' Dig. viii. 1251; ix. 150, 153, 324; xiv. 1739. S.C. 7 Jur. N.S. 1169; 5 L.T. 160; and, below, 8 Ir. Ch. R. 177. Cited in Webster v. Southey, 1887, 36 Ch.D. 19.] Renewable Leases-Statute of Limitations-Acquiescence-Landlord and Tenant- Trust-Costs-3 and 4 Will. 4, c. 27. Where a lease, renewable for ever, had expired by the dropping of the lives, so that, in fact, only a tenancy from year to year existed, but the owner in fee of the lands, the tenants, and their sub-tenants, had all been acting for years on the terms of the lease, which was at length duly renewed: Held, that no one of them could subsequently set up in equity claims adverse to the several characters they bore under such lease and the sub-lease. So long as the relation of landlord and tenant subsists, the right of the landlord to rent is not barred by non-payment, except that under the 42d section of 3 and 4 Will. 4, c. 27, the amount to be recovered is limited to six years. The 24th section of that statute only bars equitable rights, so far as they would have been barred if they had been legal rights. It is not in the power of a tenant, by any act of his. own, to alter the relation in which he stands to his landlord. A. in 1699 granted to B. a lease for lives, renewable for ever. This lease, by the death of B. intestate, vested in his four daughters. The interest of three of them became, in 1778, vested in C., who got possession of the whole of the property; but upon D., who claimed one undivided fourth part, filing a bill in Chancery against C., he, in 1779, agreed to accept, and D. consented to grant him, a lease of that undivided fourth part for 999 years, at an annual rent of £40. The lives in the original lease dropped in 1784, but all the parties went on for years acting upon its terms. Up to 1828 the rent on the lease of 1779 had been duly paid. D. died, having first devised her interest in that lease to E. The representative of [361] C. then asserted a claim to the whole property, and refused to pay the rent of £40, and E. did not take any steps to enforce its payment. In 1835, the representative of C. obtained a renewal of the lease of 1699. In 1854, he became party to a proceeding in the Incumbered Estates Court, and from what occurred there, E. became acquainted with facts which induced him, in 1856, to file a bill H.L. xi. 769 35 XH.L.C., 362 ARCHBOLB V. SCULLY [1861] to have the grantee of the renewal lease declared a trustee for him as to one undivided fourth part of the estate comprised in that lease: Held, that E. was entitled in equity to this relief, notwithstanding the lapse of time and his own non-enforcement of payment of rent, but he was required to grant a renewal of the lease of the fourth part for the residue of the term of 999 years. Considering the delay of E. in enforcing his rights, the decree was ordered to be made without costs. Pierse Power was seised of the lands of Carrickavantry under a lease for lives renewable for ever, made to him and his heirs by the Earl of Tyrone in 1699, and of some other lands at Ballykilmurry, in the same county, to which he was entitled in fee, and, being so seised, died, leaving five children: one son, John Power, and four daughters, Catherine, Margaret, Mary, and Ellen. John died in 1750, intestate, and without issue, whereupon the four sisters became entitled thereto as tenants in common. Three-fourths of these lands afterwards became vested in the Respondent, William Scully. The question now raised related to the remaining fourth. Catherine, the eldest daughter, married, first David Pilkington, and afterwards John Dermody; Margaret married Sylvester Fanning; Mary married James Carroll, and died without issue; Ellen married John Donegan. James Lonergan, a grandson of Margaret, was in possession of all the premises in 1778, and in that year Catherine Dermody (the last life in the original lease of 1699) filed her bill in Chancery, claiming one undivided fourth in her own right, and one-third of Ellen's fourth. The suit was [362] compromised, Lonergan agreeing to accept, and Catherine Dermody to grant, a lease of the undivided fourth of all the said lands for 999 years, at £44 4s. 4Jd., late Irish currency (£40 16s. 4d. sterling). This lease was duly granted in August, 1779, and she received the rent during her life. She died in 1784, leaving four children: Daniel and Ann Pilkington by her first marriage, and Pierse and Mary Dermody by her second marriage. Daniel Pilkington entered into the receipt of this reserved rent, but died very soon afterwards, leaving his sister Ann his heiress at law. She entered into possession, and by deed of 25 October 1786, granted one-third part of the lands from her own death to her niece Catherine Shee, for the life of Catherine Shee, and then to her right heirs for ever; and in case of no such issue or of the issue dying without issue, such third part was to go to Januarius Fanning and the heirs of his body for ever; and in case of his having no issue to James Fanning and the heirs of his body, remainder to the right heirs of herself, Ann Pilkington. This deed was duly registered in November 1786. There was a deed with similar provisions in 1789. James Lonergan held the estates during his life, and died in 1790, leaving his son, John Lonergan, who then entered into possession of them. Ann Pilkington died in 1795, and Catherine Shee, her devisee, then entered into possession of the rents of the undivided fourth part. John Lonergan had three daughters, Mary Anne, Bridget, and Margaret; and by his will in February, 1797, after bequeathing an annuity to his wife, he gave all his interest in the estates in question to these three daughters. Bridget died unmarried; Margaret married F. M. Po-wer, and died without issue; Mary Ann married Dr. William Scully, who died in 1824, and leaving W. Scully, the Respondent (then an infant, of twelve years of age), his [363] eldest son and heir-at-law. The rent under this lease was regularly paid to Catherine Shee up to the time of her death in 1828. Catherine Shee had, in March 1828, made her will, and thereby devised unto the Appellant, John [Archbold], all her title and interest under the lease of August 1779, and empowered him to demand the rent thereby secured to meet the charges created by her will, and also constituted him her residuary legatee. Upon the death of Catherine Shee in 1828, Mary Anne Scully, the mother of the Respondent, claimed to hold the estates in her own right discharged from all incumbrances, and she refused to pay any rent to the Appellant, asserted that Catherine Shee was only an annuitant for life, and never admitted any suggestion as to the existence of the lease of 1779. She died in 1830, and her son, the Respondent, was then made a ward in Chancery, and a receiver was appointed over the estates. In April 1835 the Marquis of Waterford, the owner of the reversion in fee of Carrickavantry, granted for three new lives, to James Scully and Thomas Butler, as trustees under 770 ARCHBOLD V. SCULLY [1861] IX H.L.C., 364 a settlement of 1821, a renewal of the original lease of 1699. In November 1854, 'the Appellant heard that a petition had been lodged in the Court for the sale of Incumbered Estates, praying for the sale of the lands of Carrickavantry and Bally-kilmurry; and being applied to for the production of any deeds he might possess with relation to these estates, he directed an inquiry into the matter. The result was, that on 4th January 1855, he entered a claim in the Court for the rent due under the lease of 1779, relying on the secondary evidence of the lease given in that suit, for the lease itself had never been in his possession. Various proceedings took place, and on the 25th April 1856, after argument by counsel, the Commissioner made an order confining the sale of the lands to three undivided fourths, [364] " the owner's title to the fee simple of the other fourth not having been fully deduced." The petitioner for the sale was to be allowed to amend his petition, or to take such other step as he might be advised. In the proceedings which subsequently took place, the lease of August 1779 was produced. The final order of the Commissioner, dated 11 February 1858, directed a sale of all the lands including the residue of the term of 999 years under this lease, for the purpose of discharging the incumbrances thereon. Before this final order was made in the Incumbered Estates Court, the Appellant filed his cause petition in the Court of Chancery, setting forth the facts above stated, and praying for a declaration of his right to the reversion expectant upon, and the rents reserved by, the lease of August 1779 (the knowledge of which he alleged to have been fraudulently kept from him) of one undivided fourth part of the estates, and that Thomas Butler, the surviving trustee under the settlement of 1821, should be declared trustee for the Appellant under the renewal of April 1835, as to one undivided fourth part of Carrickavantry, and be decreed to convey accordingly; that W. Scully should pay the Appellant the arrears of the rent of £44 4s. 4Jd.; and should bring into Court the original lease of Carrickavantry and the renewal thereof, and the lease of August 1779, and for general relief. The Respondent Scully appeared, and put in an answer to this petition, setting forth that, in October 1786, Ann Pilkington conveyed the lands to Catherine Shee in tail, with remainders to Januarius and James...
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