Allen v Aldworth

• Jurisdiction: Ireland
• Judgment Date: 06 February 1862
• Date: 06 February 1862
• Court: High Court of Chancery (Ireland)

Chancery.

ALLEN

and

ALDWORTH.

Dixon v. ClarkeENR 5 C. B. 365.

Cullen v. LeonardUNK 5 Ir. Eq. Rep. 134.

Creagh v. BloodENRUNK 3 Jo. & Lat. 133; S. C., 8 Ir. Eq. Rep. 688.

1862. Chancery. NUNN V. DONOVAN. Judgment. 190 CHANCERY REPORTS. was, I have no doubt that he intended Mrs. Donovan. to have one moiety. That view of the case is sustained, and not defeated, by the settlement of 1817 ; for the plain intention of that instrument was to do for Mrs. Nunn what had been already done for Mrs. Donovan, and to settle on her one moiety of the estate. He may have been better advised as to the operation of the deed of 1787 when he executed this instrument, but its substantial operation is to convey to her nothing but one moiety ; and it is difficult to put any other interpretation on the conveyance in it by Mr. Westby ; for he plainly never intended to do more than settle one moiety on one daughter, and the other on the other. He seems to have been a man of fair and just intentions ; and nothing could have been more adverse to his views than to have it determined that he had ousted the family of Mrs. Donovan, and given her interest to the family of Mrs. Nunn, and had defeated that arrangement which, as between his two daughters, was his plain intention and duty. I will not make this gentleman sin in his grave ; I will rescue him from this attempt ; and dismiss this petition, with costs. Reg. Lib. 28, f, 214. Jan. 28, 30, ALLEN v. ALDWORTH. 31. Feb. 6. Where the re- THE material facts of this case appear sufficiently in the LORD versioner in a lease for lives CHANCELLOR'S judgment. renewable for ever, in reply Mr. Serjeant Sullivan, Mr. Warren and Mr. James Murphy, for _to a request from the ten- to execute the petitioners. ant a renewal. The Court is bound, on the ordinary equity of this Court, to postpones the execution, for his own convenience, he is not entitled to require septennial fines which might otherÂÂwise become due in the interim ; and he is not entitled to impose upon the tenant any condition respecting the tenant making out title to the lease, before the time at which he will be prepared to execute such renewal. It is not necessarily fraudulent on the part of an equitable tenant for life, of renewable leaseholds, to require the renewal to be made to him, without menÂÂtioning the settlement by which the legal estate is vested in trustees. CHANCERY REPORTS. 191 decree a renewal. Mere neglect is not sufficient to disentitle the tenant, without fraud on his part. Mr. Aldworth was the person who caused the delay, by his absence from the country, in the first place, and then by his demanding that to which he was not entitled. The tenant was ready and willing to take a lease, and made a bona fide tender of the fines then due. Tender is equivalent to payment, for this purpose : Dixon v. Clarke (a). The payment or tender of of the fine is the substantial matter which entitles the tenant to say that a forfeiture has not occurred : Cullen v. Leonard (b). The respondent had no right to fix any particular time for making out title; and the tenant did all he could to satisfy Mr. Aldworth's legal advisers as to the title, but they refused to examine it. There was no fraud in not requiring the renewal to be made to the trustees ; at the utmost, it was mere mistake. 1862. Chancery. ALLEN v. ALDWORTH. Argument. The Solicitor-General, Mr. R. R. Warren and Mr. Townsend, contra. Mr. Allen had no right to have the renewal made to him in 1844; he never showed title to the lease, and he could not have traced it to himself, for it was in the trustees. Mr. Aldworth had a right to have the title made out to his satisfaction ; and until that was accomplished, he was not bound to grant a renewal, and he had a right to the accruing renewal fines. There was, therefore, never a sufficient tender made to him, and the delay was altogether unreasonable. The conduct of Allen in requiring a renewal to himself instead of to the trustees, was calculated to embarass Mr. Aldworth in enforcing his rent and covenants, if such a renewal had been made ; for it would not have operated as a surrender of the outstanding lease: Creagh v. Blood (c). The attempt to obtain such an advantage is itself enough to dis , entitle the petitioner. The LORD CHANCELLOR. Feb. 7. This case came before the Court upon a cause petition filed by Judgment. (a) 5 C. B. 365. (b) 5 Ir. Eq. Rep. 134. (c) 3 Jo. & Lat. 133 ; S. C., 8 Ir. Eq. Rep. 688. 192 CHANCERY REPORTS. William Allen a minor, by Clara Delinda Allen his mother and next friend, and by it he prays for the specific performance of a covenant for perpetual renewal of the lease of the lands of .Liscargill, under the following circumstances : In 1792, by a lease dated the 20th of April in that year, Richard Aldworth, the ancestor of the respondent Richard Oliver Aldworth, who is now seised of the reversion of the lands in question, demised them to a person named Francis Hudson. As the lease is stated in the cause petition, it was one of an ordinary character ; a lease of lives renewable for ever, respecting the character or construction of which no question could be raised; and the petitioner has proved that the interest under that lease was vested in William Allen his grandfather, by a conveyance of the 24th of January 1841, to Mr. Allen from James Hudson, the descendant of the original lessee. In 1843, on the marriage of the petitioner's father, the eldest son of the purchaser, a settlement was executed under which the elder Mr. Allen took an equitable estate for life, the legal estate being left outstanding in trustees, who have been made parties to this suit ; and the question in the cause depends on the construction which the Court should put on the acts and conduct of the parties in a negociation, which commenced in 1844 and lasted until 1846, respecting the renewal of this lease ; the parties to it being Mr. William Allen, the grandfather of the present petitioner, on the one side, and the present respondent on the other. I should observe that there had been a renewal for three lives of the original lease, in 1818, and that of these lives one was still in being ; but that two of these had died before 1844; and according to the calculations made of the fine payable, the last of these lives, that is, John Bass, had died on the 27th of November 1837; and consequently there were due, at the time when negotiations comÂÂmenced, the fines on account of these two lives, with septennial fines and interest : and there also appears to be no doubt that at the commencement of the negociation, the amount due for fines and interest was 47. 14s. sid., of the present currency. On the...