Barrett v. Burke [1817] UKHL 5_Dow_1

UKHL
Barrett v. Burke
[1817] UKHL 5_Dow_1
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session , 1816—17.57 Geo . III.IRELAND.APPEAL FROM THE COURT OF EXCHEQUER.

No. 1

Barrett Appellant v. Burke Respondent

Feb . 26 , March 5 , 1817 .LEASE FOR LIVES RENEWABLE FOR EVER.—NEGLECT TO RENEW—TENANTRY ACT. &C.Lease in 1713 for three lives, renewable for ever on payment of a fine on the dropping of each life, at 50 l . rent, by A . to B. B . leases the lands to C . at 100 l . rent, with covenant to renew for ever to C . on the same terms; and B . also covenants to renew regularly with A. C . pays his fines and renews with B ., but B . never renews with A . a representative of A ., in 1793, accepts some money from C . towards the discharge of the fines due from B ., and makes demands for payment of the whole of the fines by C ., which C . neglects to comply with. A formal demand of the fines made by a representative of A . in 1799, against C ., who does nothing for nine months after demand, and then makes an illusory tender which is not accepted. Held, by the House of Lords, that under these circumstances C . had no claim in equity to a renewal.

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Per Lord Redesdale. A formal demand is not necessary under the Tenantry Act. The true meaning of the Tenantry Act is to declare what was the Equity of Ireland, with respect to these leases, before the statute. When a demand is made, the neglect to pay, when it goes beyond what is a reasonable time for payment, ceases to be mere neglect and becomes wilful. What is a reasonable time for payment must depend on circumstances, and no precise time applicable to all cases can, with justice, be fixed. Though a formal demand is not necessary, yet, when such a demand is made, the prior demands are waived, and the time is to be computed from the period of the formal demand: but prior demands are to be taken into account in considering what is a reasonable time after the formal demand. When the first lessee receives the fines from his under-tenant, and neglects to pay them to the head landlord, that is fraud in the first lessee, who is therefore not entitled to a renewal, and the remedy of the under-tenant is against the first lessee, and not against the head landlord. The landlord, in making the demand, is not bound to state the precise sum due, nor to make a demand upon, or give notice to, every individual interested in the subject. The original design of these leases, was the better cultivation of inferior lands and the more easy recovery of the rent, &c.Original lease, Dec. 23. 1713.Nash becomes entitled.Lease from Nash to Burke.The original lease never renewed.By indenture, dated 23d December 1713, the Honourable Edward Brabazon, being seized in fee of certain lands, those of Garrylish and others, in the county of Tipperary, demised the same to John Marshal, of Clonmell, for three lives (of the Brabazon family), at 50 l . rent, with a covenant for perpetual renewal, upon the request, and at the expense, of the lessee, within twelve months after the expiration of any of the lives then inserted or thereafter to be inserted, upon payment of a fine of 25 l . for each new life added. Robert Marshall, the son of John, having become entitled, he agreed to execute

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In 1799 Barrett becomes entitled as head landlord.Formal demand.Demand in March 1801, and no step taken by the tenant to settle the account till Nov. 1801.Tender.The Appellant became entitled to the lands as head landlord, in 1799, by devise from Edward

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Dec. 1801. Bill by the tenant for a renewal.Alleged agreement in 1793.Prayer for renewal to Burke as trustee for Nash.Answer.In M. T. 1801, the Appellant brought an ejectment against Burke; and on the 4th Dec., 1801, Burke filed his bill in the Court of Exchequer, stating, that in 1780, William Brabazon, then the head landlord, had agreed to accept Nash's profit rent in discharge of the arrears of the head rent and renewal fines; and that from 1782 the head and profit rents had been regularly paid; and that, in 1793, Edward Brabazon, the son of William, had distinctly agreed to accept of this mode of payment , so that the forfeiture was waived; and praying that the Appellant, or the heir at law of Edward Brabazon, might be decreed to execute to Burke, as trustee for the heir or representative of Nash, a renewal of the original lease, and for an account and injunction. To this bill none of the Nashes were parties. The Appellant in his answer insisted that there had been such laches and neglect on the part of the Nashes, and those deriving under them, as amounted to gross fraud; and that the right of renewal was forfeited, particularly by the lapse of ten months from the time of demand and notice, without any attempt to pay the fines, except the illusory tender in November 1801.July, 1802. Amended bill.

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Burke then, in July 1802, filed an amended bill, making the representatives of Nash parties, in which it was stated, that by an agreement in writing, executed in 1782, Nash consented to assign his profit rent to William Brabazon until the arrears of the head rent should be discharged;—a statement differing from that made in the original bill, inasmuch as it was not alleged in the amended bill that, in the agreement with William Brabazon, any thing was said respecting the renewal fines. The consent of Edward Brabazon in 1793 to accept the profit rent in discharge, both of arrears of head rent, and renewal fines, was stated as before; and the prayer was the same as in the original bill. Answers having been put in, and the cause revived by the Respondent on the death of his father, issue was joined, and witnesses examined.

Evidence

The only evidence material to be noticed for the present purpose is that of the law agent for the Plaintiff, Mr. Edward Kirby, who had been the law agent of Edward Brabazon relative to the transaction of 1793. He stated, that in consequence of letters written by him, at the desire of Edward Brabazon, to Milo Burke, requiring Burke to settle an account of arrears of rent due from the Nashes, a meeting took place in May 1793, between Burke and Brabazon, at which he, Kirby, was present; and it then appeared that all arrears of rent had been paid up to November 1792, with an over-payment of 100 l .; that Edward Brabazon said “he would allow the over-payment out of the renewal fines due by the Nashes to him for the lands, whereupon deponent did then communicate to

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wanted a new coach; in answer to which, deponent told him he could easily get one; to which said Edward replied, that he would not go in debt for a coach, but that he would insist on Bourke's paying as much on account of the renewal fines as would purchase one, otherwise, that he would insist on payment of the entire, or evict the lease, or words to that effect. And saith, deponent did, immediately after such conversation, write to the said Milo Bourke, unless he did then, without delay, remit 200 guineas, as he best recollects and believes, on account of the fines due for said lands, to deponent, deponent would discontinue to receive the Nash's profit rent; but saith, said Bourke did not remit one shilling more than his usual payments of the head rent and some part of Nash's profit rent.”
“Saith, that prior to May 1793, deponent believes he got instructions from said Edward Brabazon to demand or enforce renewal fines from the Nash family; in consequence whereof, deponent did, as he verily believes, apply to Milo Bourke, deceased, and also to Mary Nash, the widow of James Nash, for payment thereof. Saith, that from 1st May, 1793, till within a month of said Edward's death, as deponent best recollects, said Edward never did, to this deponent's knowledge, direct deponent to take proceedings to evict the interest in the lands in the pleadings mentioned, in case said renewal fines were not paid; but saith, that in the latter end of November, or beginning of December 1799, said Edward in conversation told deponent that he

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And, in his cross examination, the witness made the following statement with respect to the renewal fines:in consequence of deponent's application to Milo Bourke according to the first directions he received from Edward Brabazon on the subject, that a meeting took place on the 1st of May, 1793, between said Edward and Milo at Tara, where an account was stated of the payments made by said Milo on account of the rents of the lands in the pleadings mentioned; saith deponent hath no recollection, nor does he believe that said Edward, on any occasion , complained to deponent, or in his presence, that no proceedings had been taken for the recovery of the said rents or fines, or made any complaint of that or a similar nature to deponent's knowledge or belief.”
“Saith, that prior to the month of May 1793, deponent was directed by Edward Brabazon, deceased, either to apply for or enforce the payment of the renewal fines and arrears of rent, if any arrears were due, on the lands in the pleadings mentioned, from the Nash family and said Milo; saith; he recollects to have received such instructions subsequent to 1st November, 1799, but does not recollect to have received any such instructions in the interval between May, 1793, and November, 1799; does not recollect that any person was present when he received such instructions or directions; believes he answered on both such occasions that he would do as he was so directed; saith that it was

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Amount of the evidence respecting the alleged agreement of 1793.Issue.Decree, May 15, 1807.The amount of this evidence, as understood in the House of Lords, was that Edward Brabazon had accepted some money, part of the profit rent, on account of the renewal fines, but that he had not agreed that the whole should be gradually liquidated by payment to him of the profit rent, and that he had on the contrary insisted upon payment of the fines in a different mode, but without effect. The Court below, however, seems to have been of opinion that if Edward Brabazon accepted from Bourke any part of the profit rent on account of the fines, he thereby bound himself to accept the whole in that mode of payment, and had waived the forfeiture; and that the cause hinged upon the point whether Edward Brabazon had or had not thus accepted money from Bourke; and the Court tendered an issue to the defendant (Appellant, Barrett) to try that question, which issue Barrett declined to accept; and the Court seems therefore to have

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Meath, died 22d Nov., 1772; and it appearing that the said tenant has twelve months time to nominate a new life in the place and stead of any life named in said lease of the 23d Dec., 1713, that should happen to fall, and so from time to time upon all subsequent renewals), let the officer charge one fine of 25 l . with interest from the 15th July, 1759, and another fine of 25 l . with interest from the 14th May, 1764, and another fine of 25 l . with interest from the 22d Nov., 1773; and so, at the end of every eight years from the then periods last-mentioned, let him charge additional fines of 25 l . each with interest; and let the officer distinguish and report how much of the balance which will appear to be due for renewal and septennial fines, and interest thereon, upon the said 27th day of Feb., 1801, according to the directions aforesaid, is composed of renewal and septennial fines which became payable to the said Earl of Meath, the lessor during his life-time, with interest for the same, and how much thereof is composed of renewal and septennial fines which became due in the time of William Brabazon during his life-time, with interest for the same, and how much thereof is composed of fines which became payable to the said Edward Brabazon during his life-time, with interest for the same, and how much thereof is composed of fines due to the Defendant, Roger Barrett (the Appellant), in his own right, as the devisee of the said Edward, and reserve all equity between the parties, and all further directions until the return of the report.”
“That the Appellant having declined to accept an issue to try and inquire whether Edward Brabazon, in the pleadings mentioned, did at any time, and when, receive any and what sums of money out of the lands comprised in the lease of 23d Dec., 1713, for or on account of the renewalor septennial fines due under said lease; that it appears to the Court, that William Brabazon, in the pleadings mentioned, and the said Edward Brabazon, were respectively in receipt of the rent of 102 l . 10 s . a year, in pleadings mentioned, from the 10th day of Dec., 1782, to the 30th Dec. 1799, first in discharge of the rent and arrears of rent due to them, and next in and towards satisfaction of the renewal and septennial fines, and the interest thereon; therefore let the officer inquire and report the amount of all sums so received by the said William and Edward Brabazon out of the said lands during the period aforesaid, and let him apply the same as received, first in discharge of rent and receiver's fees, and arrears of rent due, and then in discharge of the renewal and septennial fines and interest thereon; and let him strike a balance on the foot of such fines, septennial fines, and interest, on 27th February, 1801; and in taking such accounts of fines, and septennial fines, and interest, (the parties admiting that Brabazon Ponsonby, Earl of Besborough, died on the 15th July, 1758, and that Chaworth Brabazon, Earl of Meath, died 14th May, 1763, and that Edward Brabazon, Earl of

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Final decree. Renewal to the Nashes.Appeal.The officer having made his report, a final decree was pronounced on the 24th June, 1812, whereby the Appellant was ordered to execute a renewal of the lease to Mary Nash, widow, and Richard Harold, the surviving trustee named in the will of James Nash deceased, &c. From these decrees Barrett appealed.Counsel: Sir Samuel Romilly and Mr. Roupell for the Appellant; Mr. Hart and Mr. Wetherell for the Respondent.March 5, 1817.Judgment.Ground of decision below, that Barrett had declined to accept an issue to try whether Edward Brabazon had received any payments on account of renewal fines.Lord Eldon (C.) In this case the Court of Exchequer pronounced a decree reciting “That Barrett having declined to accept an issue to try and inquire whether Edward Brabazon, in the pleadings mentioned, did at any time and when receive any and what sums of money out of the lands comprised in the lease of 23d Dec., 1713, for or on account of the renewal or septennial fines due under the said lease, &c.;” and, afterwards, a decree was pronounced, giving Bourke the benefit of the act usually called the Tenantry Act. The Court below, therefore, proceeded on this issue as an essential part of the case; and they seem to have thought that, as the Appellant had declined to accept it, the case was to be taken as if the issue had been tried and found against him; and on that ground they gave relief. On looking at the bill and the answer, and at the evidence of Kirby; and considering with whom he was connected at the time of the latter part of these proceedings, and with whom he had been before connected; and considering

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That issue ought not to be directed, and, though it had been found against the Appellant, it would not have been conclusive against him.This not a case of mere neglect.Demand made, and not complied with.Looking at the Tenantry Act only, I cannot, in that view of the case consider this as a case of mere neglect; and it would be mischievous not to distinguish between cases of mere neglect, and cases of wilful neglect. The tenant was in possession, and knew the cestui que vies; and he transacts with his intermediate landlord, paying him the fines, while no care was taken to pay what was due to the original lessor. In this case also a demand was made, and not acceded to; and it cannot be considered as a case of mere neglect.I have stated the grounds of my opinion very shortly, because the reasons and principles on which it is founded will probably be stated and explained at large, and much better, by a noble Lord who presided for some time in the Court of Chancery in Ireland.The issue not. decisive of the case, for though some sums might have been paid to E. Brabazon on account of the fines, there might still have been wilful neglect on the part of the tenant.Lord Redesdale . I am clearly of opinion that the decrees ought to be reversed. The issue had no tendency to decide the case. The issue was, “whether Edward Brabazon, in the pleadings mentioned, did, at any time and when, receive any and what sums of money out of the lands comprised in the lease of 23d Dec., 1713, for or on account of the renewal or septennial fines due

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The real nature and effect of the transaction of 1793.The Tenantry Act. It is a declaratory act, declaring what was the Equity of Ireland before it passed.But it is clear from Kirby's evidence that there was no such agreement. The evidence amounted only to this, that Edward Brabazon consented to apply what he received beyond the arrears of the head rent towards the discharge of what was due to him on account of the fines. But there was no contract that he would not call for the fines in any other manner; and it appears, from Kirby's evidence, that he did, in fact, call for the fines in another manner: so that the ground on which the Court of Exchequer proceeded is not a just ground. The only question is, whether the tenant, having clearly lost his legal right, ought to have the relief which, by the practice of the Courts of Equity in Ireland, was given, before the Tenantry Act was passed; for the true meaning of the Tenantry Act is to declare what was the Equity of Ireland before the statute. It is merely a declaratory act. The act itself recites

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Demand. Neglect. Reasonable time.Truman v. Waterford , 1 Scho. Lef. 451.No precise time for renewing after demand can be fixed. What is a reasonable time must depend on the circumstances of each case.In my humble opinion, and I have frequently had occasion to consider this act, the meaning of it is, that the moment a demand is made, the neglect, when it goes beyond what is a reasonable time for payment, ceases to be mere neglect, and becomes wilful. Lord Clare had the same view of the meaning of the act. “Reasonable time,” he says, “within the act shall be deemed only that time which is necessary to give the tenant full opportunity for ascertaining when the cestui que vies died, for computing the amount of the fines due, and for preparing the leases. The precise time cannot be defined.” That I take to be the true meaning of the act; and it must depend upon the particular circumstances of each case, whether the tenant has applied for renewal within the proper time. It has been contended that some precise time ought to be fixed. But the circumstances are so various that it would be doing great injustice to the tenants to fix any precise time. Every case is different in its circumstances; and a singular circumstance in the present case is, that the only person who had the means of making up the account is agent for the lessee, and had been agent for the lessor; and he had in his possession all the documents necessary for the purpose of making up the account, and no other had them. He therefore, and no other, was competent to make up the account,

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Nash receives the fines from his undertenant, and does not pay them to his landlord: this is fraud in Nash, and the Nashes have no good claim to a renewal. State of the case as to Burke. Prior demands.In this case it appears from the evidence of Kirby, who stood in the singular situation which I have before mentioned, that demands were made several years before, and that, on Burke's representing that he had paid the fines to the Nashes, Edward Brabazon consented to give some indulgence to Burke, and to receive the profit rent; and then Kirby states, “whereupon the Deponent or the said Edward (Brabazon) desired that the said Bourke should, as soon as he could, endeavour to make up the amount of the renewal fines; for that he, Mr. Brabazon, would not pay any compliment to the Nash family: ” and yet this decree gives the benefit of the lease to the Nash Family. Brabazon had given the indulgence merely out of compassion to Burke. Nash having

Footnote

* Vid. ante , vol. ii. 437. A formal demand not necessary; but when made, the time is to be computed from the period of that demand.But prior demands to be taken into account in considering what is a reasonable time after a formal demand.

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Formal demand.The landlord, in making the demand, is not bound to state the precise sum due.A simple demand is all that is necessary on the part of the lessor.All therefore we have to inquire into is, whether Burke was guilty of wilful neglect after the demand was made. The first demand was made in 1792, and no such arrangement as that contended for took place with respect to the profit rent. That appears by Kirby's evidence. Then the profit rent continues, however, to be received, and no further demand is made till shortly before the death of Edward Brabazon, when, as Kirby states, Brabazon said that he wanted a new coach, and would insist on Burke's paying as much, on account of the renewal fines, as would purchase one, otherwise that he would enforce payment of the entire: and then Kirby wrote to Burke that, unless he did then without delay remit 200 guineas, on account of the fines due for the lands, Brabazon would discontinue

Footnote

* Bateman v. Murray . Ridge, P. C.

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Burke suffered nine months to pass after a formal demand, without doing any thing, and then he made only an illusory tender.In this case, a demand, though not a formal one, was made in 1799. On the death of Edward Brabazon a formal demand was made. What took

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The original design of these leases, the better cultivation of the lands, and more easy recovery of rent.This is clearly a case of wilful neglect; Burke having full time to be prepared to meet the demand; and Kirby, who had been agent to Brabazon, being agent for Burke, and having in his possession all the documents necessary for making up the account. Burke was bound to tender the fines, and the leases for execution, and one month was amply sufficient for these purposes. He was bound to offer the fines, and to present the leases for execution, for Barret was entitled to have a tenant acknowledging the tenure, which was an important object in regard

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It is very important therefore that the relief should be confined to cases of mere neglect, and not extended to cases of wilful neglect; and that persons bound to pay the fines and tender the leases, should do so in a reasonable time. In the present case nine months were suffered to elapse before any thing was done, and then there was a jocular,

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Decrees of the Court below reversed.Decrees accordingly reversed, and bills dismissed.