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Exch. Cham.

FOOT

v.

T. T. 1859. under such circumstances, was not against the general sense of the Profession in his time. He cites Spark's case, as sustaining the proposition; and I may add (without discussing how far that case does sanction it), that some colour is given for Mr. Furlong's view of that authority by the case, decided since he wrote, of Doe d. Robinson v Bousfield (a).

WARREN.

It is, however, perfectly intelligible why such an ejectment, even though maintainable, may not have been often resorted to in practice. A mesne landlord, in the circumstances supposed, will be entitled to treat the tenant, as at Law, a tenant from year to year, after payment of rent subsequently to the expiration of the legal estate granted by the head lease; for although the 25 G. 2 gives the right to eject for non-payment of rent, when the lands are held under an equitable written article, it does not give to the writing, for any other purpose, the force of a demise. A person so circumstanced (that is, having at Law a reversion for whatever estate, or a tenancy from year to year), desiring the possession of the lands in preference to the rent, may, by proceeding to eject upon a notice to quit, place himself in a position, in many respects, more advantageous than that which he could gain by proceeding to eject for non-payment of rent. In the former case, he puts an end at once to the tenancy at Law, and forces the tenant, if he seeks to retain the land, to institute a suit in Equity, and to establish a title there. In the latter case, he cannot effectually evict the tenant's interest under the sub-lease, until after the time for redemption shall have expired; and in that interval the forfeiture may be avoided, by proceeding in a Court of Equity for a redemption, and lodging the rent there, subject to the ascertainment (if disputed) and payment of the rent due by the tenant, on the one hand, and to the ascertainment and allowance of the amount of what the landlord, "without fraud deceit or wilful neglect, made of the premises," after the execution of the habere, on the other. The inconvenience to the landlord is very obvious, of being exposed to the inquiry which the statute prescribes in reference to his possession, pending redemption. The mere fact, therefore (if the fact be so), of ejectment for non-payment of rent

(a) 6 Q. B. 492.

Exch. Cham.

FOOT

บ.

WARREN.

not being resorted to in practice, in the memory of some of those T. T. 1859.
now discussing the question, does not seem to me to furnish any
such argument against its being maintainable, as has been pressed
upon us at the Bar. It appears to me that the result of the Eject-
ment Code is, that when lands are held under an instrument in
writing, containing an actual demise, whether with or without a
condition of re-entry, or under a mere contract in writing, giving
the tenant the right to hold, on payment of an ascertained rent,
ejectment for non-payment of rent can be maintained so long as
the enjoyment is under the written instrument, although, according
to the true state of the title, if traced to the fee, the tenant, at

Law, has only a tenancy from year to year. I agree that it
may not
be proper to construe the Irish Ejectment Code by the decisions
upon the single English statute. The Irish legislation had to
deal with a state of things, and with a condition of property, differ-
ing considerably from that which generally prevails in England.
It had to deal with property greatly subdivided, held by a mul-
titude of mesne tenants and undertenants, often under instruments
very informally framed. We must presume that the Legislature
intended to provide a remedy, adequate and adapted to the state of
things for which they legislated; and we are at liberty to construe
their words by reference to the subject-matter of their legislation.
The 8 G. 1, c. 2, shows the difficulty, which was found in practice,
of proving the existence of the reversion, in order to maintain
ejectment; a difficulty which rendered it necessary for the Legis-
lature to interpose, and to facilitate the proofs by which the plaintiff
was to place himself in privity with the lease on which the eject-
ment was brought. Subsequently it was found necessary, by the
5 G. 2, c. 4, to enable the landlord to maintain ejectment, where
there was a holding under a writing operating as a demise, but
not containing a clause of re-entry for non-payment of rent; and,
by the 25 G. 2, c. 13, the remedy was extended to cases where
there was a holding under a contract in writing, which contained
neither actual demise nor clause of re-entry. It has been said
that one-seventh of the whole landed property of Ireland was,

Exch. Cham.

FOOT

V.

WARREN.

T. T. 1859. at one time, held under leases for lives renewable for ever (a); and, considering the state of landed property with which the Legislature had thus to deal, I am disposed to give to the Ejectment Code such a construction as shall make it effectual in its application to the existing state of property in land, and not to interpose those technical objections in its application which it was the object of the whole code to remove; otherwise those very difficulties, which it was the manifest intention of the Legislature to remedy, may arise in every instance in which lands are held for lives renewable for ever, and in which a sub-lease is made for a term of years, or for different lives from those named in the original lease from the owner in fee. Wherever a lessee for lives renewable for ever shall have created a sub-lease, for a term which shall outlast the lives for which, at Law, he himself holds, or which shall outlast any enlarged estate which he may obtain by renewal, during the existence of some of those lives (and, therefore, wherever a sub-interest for a long term has been carved out of such an estate or interest), the mesne lessor, or those deriving under him, must be exposed to the difficulties which the present plaintiff has encountered, and by means of which he will be defeated, by our judgment in favour of the defendant. The present decision, if founded on the views against which I am now endeavouring to reason, will affect the oldest, even more than the latest, estates for renewable lives; because if, on the fall of all the lives, there is no possibility of enlargement (as there cannot be after the first set of cestui que vies have died, whatever be the form of renewal, or of nomination of new lives, prescribed in the head lease), then, no matter how large in quantity the sub-interest may be, ejectment for non-payment of rent will be impossible. I cannot give the Ejectment Code such a construction as will render it impossible to maintain ejectment for non-payment of rent, as to the sub-interests carved out of an estate held by a tenure by which so large a portion of the land of this country has been enjoyed, if I can give to it a reasonable construction, by which that result shall

(a) See Jackson v. Saunders (1 Sch. & Lef. 447); Boyle ▼ Lysaght (1 Ridg. P. C. 402).

be avoided.

There is no controversy as to what is the legal effect T. T. 1859. of the lease of 1782. It was a demise for 950 years, carved out

of the lessor's estate or interest; and that estate or interest was a term of 993 years, carved out of an estate or interest for lives renewable for ever, created by a lease with covenant for perpetual renewal. The lease of 1782, in express terms, purported to demise the lands for 950 years, with a covenant by the lessor for quiet enjoyment. It is perfectly plain that a contract was created by the lease of 1782, which included an obligation in the lessor to permit the lessee to enjoy the land for that term of 950 years. The ability to make that contract effectual, by securing a legal continuance of the term, may cease, if the lessor's interest in the lands ceases to be large enough to enable him to give that full effect to his contract; but the contract still remains. It is as binding and as capable of being enforced in a Court of Equity, to the full extent of the legal or equitable dominion of the lessor, as if it were a minute or contract executory in its form. Such being the contract, what are the acts of the parties? The lessor takes the rent ascertained by the contract; the tenant pays that rent, and holds the lands; and all this occurs not after, but during, the term of years for which it was contracted that the rent should be paid, and the lands should be enjoyed. In this state of facts then, wholly irrespective of the doctrine laid down in Thomas v. Packer-wholly irrespective of any incident arising out of the creation of a yearly tenancy, by holding over and paying rentbut treating the plaintiff's case as depending on the terms of the contract-I find it impossible to say that this was not an enjoyment of the lands, under a contract contained in the lease of 1782, within the meaning of the 25 G. 2, c. 13. How are we to treat contracts of this kind, where, at Law, the whole interest does not pass, which the lessor professes to create? If the lessor had only a yearly tenancy, and granted a lease of 999 years, there is authority for holding that he would have created a good term for that period, if his own tenancy so long continued (a). Suppose a person, holding

(a) See Mackay v. Mackreth (2 Chitty Rep. 461; 3 T. R. 14; 4 Doug. 213; 3 Wentworth Plead. 461).

Exch. Cham.

FOOT บ.

WARREN.

FOOT v.

WARREN.

T. T. 1859. under an executory contract for a term of 999 years, leases for lives Exch. Cham. renewable for ever; and, suppose sub-leases are again created out of this interest, cannot ejectment for non-payment of rent be maintained by each of these lessors? In Shenton v. Corbally (a), Sir W. McMahon expressed a strong opinion in the affirmative, though, of course, he pronounced no decision upon the point. are:- "When the titles of the landlord and tenant

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His words

are both equitable, consisting of articles, I presume the landlord may recover under this statute (25 G. 2, c. 13); yet there can be no "reversion at Law, both these estates being but a tenancy from year "to year; but be this as it may, if there had been a renewal, "the landlord could have tried this, or some other remedy, if his "rent had been withheld." I refer to the intimation of the opinion of the Master of the Rolls in that case, because it was decided many years before Mr. Furlong wrote; and, according to that opinion, ejectment for non-payment of rent may be maintained by a mesne lessor, where his tenancy has become, at Law, only a tenancy from year to year; the enjoyment of the sub-tenant being governed by an instrument purporting to grant a term under which the lands were intended to be held. It would be a rather startling consequence that, if a person himself holding only from year to year enters into a contract for a lease for 900 years, he shall be entitled to eject his tenant for non-payment of rent; but that, if he enters into such a contract, himself holding for lives renewable for ever, though his own equitable interest under the covenant for renewal has never been disturbed, and although new lives have been nominated and agreed on, and the old rent has been constantly paid, without the execution of a formal instrument of renewal, he cannot, after the lives in his head lease have dropped, maintain such an ejectment. I find, in the present case, according to the express words of the 25 G. 2, c. 13, a contract in writing, under which the lands are enjoyed, and by which the rent is ascertained; and I confess I require some stronger reason than any which I have yet heard, to bring me to the conclusion that the remedy by ejectment

(a) 1 Hog. 403, 430.

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