annuity bond, without suggesting breaches; and as we consider this case E. T. 1845. to be clearly within the statute, the plaintiff must suggest breaches. No rule. Common Pleas. MONTGO- v. BLACKWOOD Lessee WILSON v. HENDREN. April 24, 25. In an ejectment on the title, the plaintiff produced lease of the and proved a premises bear. ing date in 1769, purporting to have been made by one E. D. W. to J. A., "for and during the term of sixtysix years, provided the said E. D. W.'s lasted SO THIS was an action of ejectment on the title, which was tried before Crampton, J., at the last Carrickfergus Assizes. Counsel for the plaintiff produced, and relied upon, a lease of the premises mentioned in the declaration in ejectment, bearing date on the 27th of February 1769, and purporting to have been made by one Ezekiel Davys Wilson to one James Addison, for and during the term of sixty-six years, commencing on the 1st of November 1768, which it was alleged had expired on the 1st of November 1834. The plaintiff proved that the interest of the grantor of that lease was vested in his lessor; but on production of the lease, it appeared that the demise was of the premises mentioned in the ejectment at a pepper-corn rent, "For and during the term of sixty-six "years, provided the said Ezekiel Davys Wilson's (a) lasted so long, to "commence on the 1st of November last." It appeared in evidence, that the said Ezekiel Davys Wilson died in 1821; that the defendant, Hendren, had got into possession in 1838; and that between 1835 and 1838, he had said to the agent of the lessor of the plaintiff, "lease of the garden was out, or would soon be out, and that he should "have to pay rent for it ;" and on which occasion, some verbal negociation for a new lease had taken place between the defendant and the lessor of the plaintiff. Counsel for the defendant contended, that inasmuch as it did not appear that Ezekiel Davy's Wilson had any interest in the premises which would extend beyond his life, and as it was not shown that there was any receipt of rent for these premises by any of and 1838, in the lessors of the plaintiff, or any person under whom they, or any them, derived, within twenty years before the day of the demise; nor that any acknowledgment in writing had been given by the defendant, "That the of long;" but gave no eviexistence of dence of the the interest of E. D. W. in the premises. There was some evidence of a verbal negociation between the de fendant and plaintiff for a new lease between 1835 which latter year the defendant got into possession. Held, that notwithstanding proof of the death of the said E. D. W. in 1821, the Jury were properly directed to find a verdict for the plaintiff; and that as the lease must be taken to have expired in 1834, there was no ground for the operation of the Statute of Limitations. (a) Sic in orig. Common Pleas. Lessee WILSON E. T. 1845. or any person under whom he derived, the plaintiff had not made out a title, and ought to be nonsuited. The learned Judge refused to nonsuit, and directed a verdict for the plaintiff, reserving liberty for the defendant to move the Court to have a nonsuit entered, should they be of opinion that the plaintiff ought to have been nonsuited. The Counsel for the defendant having obtained a conditional order on the foregoing v. HENDREN. terms Mr. Napier, Q. C., for the defendant, moved the Court to make the conditional order absolute, and that the verdict should be set aside and a nonsuit entered. The omitted word in the sentence of the lease in question, "Provided the said Ezekiel Davys Wilson's lasted so long," is either "life" or "interest." If the former, which in the absence of proof is to be presumed, the lease expired on the death of Wilson in 1821, and there having been no payment of rent or acknowledgment of title since, the plaintiff is bound by the Statute of Limitations: Doe d. Mannion v. Bingham (a). If the word "interest" is to be supplied, the onus probandi of the continued existence of that interest lay upon the plaintiff; and having omitted to give any evidence on the subject, he ought to have been nonsuited: Clear's case (b). The mere verbal negociation for the renewal of the lease is no answer; for it has been decided that even a written negociation to hold the lands in dispute at a moderate rent, is not sufficient to take the case out of the statute: Doe d. Curzon v. Edwards (c). Mr. Gilmore, Q. C., and Mr. Henry Joy, for the plaintiff.-The verdict should stand; for if the lease was for sixty-six years, to be computed from 1768, it expired in 1834; and then the statute is no bar, as the case of Doe d. Mannion v. Bingham only decided that an ejectment for non-payment of rent was not maintainable during the continuance of the lease, and did not decide that an ejectment was not maintainable at the expiration of it. At all events, it has been ruled in the cases of Grant v. Ellis (d); Doe d. Davy v. Oxenham (e); and Daly v. Lord Bloomfield (f)—that the statute does not apply to cases of rent reserved by lease. On the other hand, a tenant is not admitted to contradict the title of his landlord, unless that title has expired before the ejectment was brought; and in that event, the fact is to be established by the tenant affirmatively: Doe d. Syburn v. Slade (g); and the tenant has not (a) 3 Ir. Law Rep. 456. (c) 6 M. & W. 295. (e) 7 M. & W. 134. (g) 4 T. R. 682. (b) 1 J. & S. 93. (d) 9 M. & W. 113. (f) 5 Ir. Law Rep. 65. shown that here. It is not incumbent on the lessor of the plaintiff to show at what time his interest expired: Clear's case is inapplicable, as it was not between landlord and tenant, and is wholly inapplicable to that state of circumstances. The lease, therefore, must be taken to have expired in 1834, and then the statute is out of the question. Mr. O'Hagan, in reply.-The case of Deo d. Syburn v. Slade, does not determine the question raised here; because the interest which existed in that case was absolute, and not determinable, as in this case, on a contingency.-[BALL, J. But if the contingency is expressed in vague and uncertain words, so that we cannot define it, is not the term absolute for sixty-six years ?]-It is quite clear that the lease is determinable on something, which the Court is bound to supply: Doe d. Davy v. Oxenham was decided before the case of Mannion v. Bingham, and was cited in it; and therefore, cannot be considered by this Court as being inconsistent with it. DOHERTY, C. J. This case of Lessee Wilson against Hendren was an ejectment on the title, which was tried before Judge Crampton at the last Carrickfergus Assizes; and it came before this Court on an application by the defendant that the verdict had for the plaintiff should be set aside, and a nonsuit entered, pursuant to liberty reserved by the learned Judge at the trial to that effect. It appears that the land in question was a garden situated in the town of Carrickfergus, held for a term of sixty-six years, commencing in the year 1768. It is unnecessary to detail the evidence, as the question principally depends upon the wording of the lease produced and proved on the part of the plaintiff. Had this lease been a simple demise for sixty-six years, without any additional words, no question could be raised to disturb the verdict, as the plaintiff would be clearly entitled to maintain his ejectment; but, on the production and reading of the lease, it appeared to be a demise "for and during the term of sixty-six years, provided the said Ezekiel Davys Wilson's lasted so long;" and it is the insertion of this latter clause, or the omission of some other word or words in it, which gives rise to the question raised, and which is as follows: It is contended, that the term for sixty-six years when taken in connection with the proviso, might, in point of fact, turn out to have been a term for less than sixty-six years, as depending upon an existing contingency, which is not, however, clearly defined, but which it is suggested the Court ought to define, by supplying a word to fill up an omission in the language of the lease; and that then the lease would have expired more than twenty years before the day of the demise, and so bar the plaintiff by the Statute of Limitations. Now, my own indi E. T. 1845. Lessee WILSON v. HENDREN. April 25. E. T. 1845. vidual opinion is, that we have no power to fill up the omission in the Common Pleas. lease; and that without something being supplied, the proviso in question Lessee WILSON บ. HENDREN. is insensible and without meaning, and ought to be struck out, which would leave the demise for sixty-six years absolute, and without restriction; and therefore, leave no foundation for the defence grounded on the Statute of Limitations. But that is not the ground on which this case is to be decided. There is another. The Counsel for the defendant urged that it did not appear that Ezekiel Wilson had been possessed of any interest beyond his own life, which expired in 1821; and that as it had not been shown that there had been any payment of rent, or acknowledgment in writing, by the defendant, or any other person in possession of the premises, within twenty years, the plaintiff had not made out any title, and ought, therefore, to have been nonsuited. But the verdict ought, in my opinion, to remain undisturbed, inasmuch as there appears to have been abundant evidence for the Jury to conclude, that the interest of the lessee, whatever it might have been, continued beyond the life of Ezekiel Wilson. The interest of the defendant did not commence until 1838, and there is evidence to go to the Jury, that between 1835 and 1838, the defendant had held conversations, from which the Jury were warranted in inferring that the interest of the lessor of the plaintiff was a continuing interest at that time; and as those who have sought ground for bringing the Statute of Limitations into operation, admit that if the interest continued beyond the life of Ezekiel Wilson, which expired in 1821, there was no foundation for raising the point, I am of opinion that all questions are closed by the finding of the Jury. TORRENS, J. I concur with the judgment of my Lord Chief Justice on both points; and I also concur in the law as laid down by Mr. Gilmore, that the onus of proving that the interest for sixty-six years had expired before the year 1834, by reason of some contingency having happened in the mean time, lay upon the defendant; which, in my opinion decides the question. BALL, J. I concur in the judgment of the Court. It appears to me that the common principles applicable to the construction of ambiguous instruments, in general, rule this case in favour of the plaintiff, as regards the first point, to which my Lord Chief Justice has adverted. The first of them is, that the language of the instrument is to be construed most strongly against the grantor; and secondly, if a tenant takes an equivocally worded lease, he is to have the benefit of the doubt. Now, to apply these to the present case: this lease is uncertain in its terms as to the proviso, condition, or contingency, which is intended to cut down the otherwise absolute term. The ground of the defendant's argument is, that this blank is to be filled up in one of two ways-either with the word "life," or the word "term;" but this is to be done by conjecture. Now, according to the settled rule, that the instrument, in cases of conjecture, is to be construed most strongly against the grantor, we must take it that the contingency which is to cut down the term of sixty-six years, not being clearly announced, that the term is to be taken as absolute. Again, apply the rule, that in doubtful cases the tenant is to have the benefit of the ambiguity, or, as in the case of a lease for seven, fourteen, or twentyone years, the tenant is to have the option of the term for which he is to hold; so here, he has got either a term for sixty-six years, absolute, or a contingent term, which is not clearly expressed; and therefore, on the principles to which I have alluded, he is to be taken to have had the benefit of the absolute term, and not to have had it cut down by conjecture. On these grounds, I am of opinion, that the question which has been argued, on the effect of the Statute of Limitations, does not arise; and that, therefore, the verdict must be allowed to stand. JACKSON, J. I concur in the judgment of the Court, that the verdict should not be disturbed; and I should not think it necessary to offer any observations on the subject, were it not that I do not quite agree in the position, that the condition or proviso is to be considered as unmeaning or insensible; for it appears to me, that the construction is plain and intelligible. I think it ought to be read thus: "Habendum during a term of sixty-six years, provided Ezekiel Wilson's (term) last so long." The word "term," is clearly to be supplied, according to the grammatical construction of the sentence. On the other hand, I do not think that the insertion of that word assists the defendant in his argument; for even if it had been inserted, yet the term of sixty-six years was good, until the event expressed in the proviso had arisen; and according to the Judge's report, there was no evidence that such an event had occurred; and as it did not appear, it must be taken not to have existed. The lease, therefore, continued in existence until 1834, and there was no ground for raising any question as to the operation of the Statute of Limitations. The Jury, therefore, found a proper verdict for the plaintiff, and it ought not to be disturbed. Allow the cause shown with costs. E. T. 1845. Lessee V. HENDREN. |