Billing v Welch

• Jurisdiction: Ireland
• Judgment Date: 06 May 1871
• Date: 06 May 1871
• Court: Queen's Bench Division (Ireland)

Q. Bench.

Before WHITESIDE, C. J., and O'BRIEN and GEORGE, JJ.

BILLING

and

WELCH.

Rorke v. ErringtonENRUNK 7 H. L. C. 617; 9 I. C. L. R. 357.

In re Tottenham's Estate I. R. 3 Eq. 528.

In re Cassan's Estate 9 Ir. Jur. N. S. 72.

In re Comyn's Esate 11 Ir. Ch. R. 330.

Coles v. HulmeENR 8 B. & C. 568.

Lord Say and Seale v. LloydENR 10 Mod. Rep. 46; S. C. 4 Brown, P. C. 73.

Waugh v. BussellUNKENR 1 Marsh, 214; S. C. 5 Taunt. 707.

Hall v. Betty 4 M. & Gr. 410.

Lampon v. CorkeENR 5 B. & A. 606.

Eastern Counties Railway v. Marriage 9 H. L. 32, 44, 62, 64.

De Vesci v. O'KellyUNKUNKIRIR I. R. 2 C. L. 267; S. C. I. R. 4 C. L. 269.

Creagh v. Creagh 13 Ir. Ch. R. 28, 504.

Gore v. O'Grady I. R. 1 Eq. 1.

Williams v. EarleELR L. R. 3 Q. B. 739.

Greensdale v. TapscottENR 1 C. m. & r. 55.

Murly v. M'Dermott 8 A. & E. 138.

Jenner v. JennerELR L. R. 1 Eq. 361.

Wilson v. Carrickfergus and Larne Railway Company Cas. Res. 1860, 1864, p. 26.

Mahony v. Tynte 11 Ir. Ch. R. 577.

Doe v. PearsonENR 6 East, 173.

Paull v. NurseENR 8 B. & C. 486.

Rochfort v. EnnisUNK13 I. C. L. R. 324.

Thellucon v. Woodford 4 Ves. 227.

O'Donnell v. RyanUNK 4 Ir. C. L. R. 44.

Attwater v. AttwaterENR 18 Beav. 330.

Muschamp v. Bluett Sir J. Bridgman's Rep. 132.

Mahony v. Tynte 1 Ir. Ch. R. 577.

In re Quinn 8 Ir. Ch. R. 578.

Lunham's Estate Ir. R. 5 Eq. 170.

Clifford v. ReillyUNK Ir. R. 4 C. L. 218.

Butler v. Smith 16 I. R. C. L. R. 213.

Chute v. BusteedUNK 14 Ir. C. L. R. 115; S. C. 10 Ir. Jur. N. S. 363.

Tittenham's Estate I. R. 3 Eq. 528,

Church v. Brown 15 Ves. 253, 265.

Warburton v. Ivie 1 Jo. 313.

Attwater v. AtterwaterENR 18 Beav. 330.

Demurrer Construction of Deed Declaration of Title by Landed Estates Court Fee-farn Grant Covenant against Alienation Repugnancy.

88 THE IRISH REPORTS. [I. R. BILLING v. WELCH (1). Demurrer-Construction of Deed-Declaration of Title by Landed Estates Court-Fee-farm Grant-Covenant against Alienation-Repugnancy. 1. In a declaration of title by the Landed Estates Court, after reciting several indentures under which the Petitioner was entitled to different denomiÂÂnations of land in fee-simple and fee-farm, it was declared that the Petitioner had a good title to the several lands, subject, as to the premises comprised in the said indenture A., to two fee-farm rents created by indentures C. and B., and subject, as to the premises comprised in the said indenture D., to a fee-farm rent created by indenture E., " and to the covenants," &c., " in the said indenture contained, so far as they relate to the lands herein specified " Held, Held, that the last word " indenture" should be read " indentures." 2. A Declaration of Title by the Landed Estates Court is as binding and conclusive upon the rights of all parties as a Deed of Conveyance by the same Court. 3. A covenant prohibiting alienation, except to a certain specified and limited class, and reserving a penal rent for the breach of the covenant, is reÂÂpugnant to the nature of an estate in fee simple. 4. Where a lease for lives renewable for ever containing such a covenant is converted into a Fee-farm Grant under the provisions of the " Renewable LeaseÂÂhold Conversion Act" (12 & 13 Viet. c. 105), the covenant ought not to be inÂÂserted in the Fee-farm Grant, and, if inserted, is wholly void and inoperative. 1Ifahony v. Tynte (1 I. Ch. It. 577) distinguished. DEMURRER to a Defence. The first count of the Summons and Plaint averred, that by indenture of the 30th of April, 1852, made under the provisions of " The Renewable Leasehold Conversion Act," Lambert Watson Hepenstal granted unto William Cowper Rochfort and his heirs certain lands in the barony of Arklow and county of Wicklow at the yearly fee-farm rent of 25 lls. 7d., and 5id. in the pound receiver's fees, payable half-yearly, clear of all deductions ; that William Cowper Rochfort thereby covenanted to pay the rent ; and further, that he, his heirs, and assigns, would not at any time thereafter alien, sell, or assign over his or their interest in the pre (1) Before WHITESIDE, C. J.., and O'BRIEN and GEORGE, JJ. VOL. V1.1 COMMON LAW SERIES. mises to any person or persons whatsoever, other than to his or their child or children, without the license or consent of the grantor, his heirs or assigns, in writing under his or their hands or seals ; and that in case he, his heirs or assigns, should alien, sell, or assign over his or their estate or interest in the premises to any person or persons other than as aforesaid without such consent, then he, his heirs and assigns, should thereafter pay yearly to the grantor, his heirs or assigns, the sum of 11d. (over and above the said yearly rent) for every acre so alienated or assigned over without such consent, to be paid half-yearly on the same days as the yearly rent ; that it was thereby provided that it should be lawful for the grantee, his heirs and assigns, at all times thereafter to let or deÂÂmise any part of the premises for years, or lives, or such terms, or estates as they or he might desire, anything therein contained to the contrary notwithstanding ; that the Plaintiff was, at the time of the breach thereinafter mentioned, and still was, the person enÂÂtitled to the said fee-farm rent and additional rent, and interested in the observance of the covenants : that the grantee, by deed dated 2nd October, 1868, aliened, sold, and assigned over all his estate and interest in the premises to the Defendant (who was not a child of the grantee), without the license of the Plaintiff under his hand and seal ; that the said assignment was not a letting or demise of any part of the premises for lives or years within the meaning of the Fee-farm Grant : that the Defendant entered upon the premises by virtue of the assignment ; that the Plaintiff was entitled as from the 1st November, 1868, under the covenant in the Fee-farm Grant to receive from the Defendant the additional rent of I ld. per acre for every acre so assigned, amounting to 14 6s. 11d. per annum ; that on the 1st November, 1869, the sum of 13 ls. 9d., being the amount for one half year of the fee-farm rent and receiver's fees and also the sum of 14 6s. lid. for one year of the additional rent, became due and payable by the Defendant under the said Fee-farm Grant, of which he had notice ; but that he did not nor would pay the said two sums or either of them. The 2nd count was the same as the 1st, but averred that the rent and additional rent became due and payable from the 1st of November, 1869. To each of these counts the Defendant pleaded :- THE IRISH REPORTS. [1. R. 1st. As to the sum of 13 ls. 9d., parcel, &c., payment into Court. 2nd. As to the residue of the Plaintiff's demand, that the origiÂÂnal lease was dated the 12th January, 1711, from Sir Roger TiehÂÂborne and William Tichborne to John Grainge [pro ut]; that the last renewal of it was dated the 28th October, 1848, from the said Lambert Watson Hepenstal to the said Henry Cowper Rochfort [pro ut]; that while the term granted by that renewal was still subsisting, the said Fee-farm Grant of the 30th April, 1852, was executed ; that afterwards Henry Cowper Rochfort, by a Fee-farm Grant of the 11th October, 1859, granted 74A. 3n., Irish plantation measure, part of the lands in the summons and plaint mentioned, to one Robert Hudson and his heirs, subject to the annual fee-farm rent of 62 15s. 4d., and that afterwards one of the Judges of the Landed Estates Court, under the authority of the 21 & 22 Viet. 0. 72, on the 25th April, 1865, duly declared, under his hand and the seal of the Court, that the said Henry Cowper Rochfort had a good and sufficient title in fee simple to the lands of Ballynegillog, now called Buekroney, and Sallymount, which comprised that part of the premises in the Summons and Plaint mentioned that was not included in the said Fee-farm Grant of the 11th October, 1859 ; that by the said Declaration it was further declared the said Henry Cowper Rochfort had a good and sufficient title to the said rent of 62 15s. 4c1., subject only as to the premises comprised in the said deed of the 11th October, 1859, to the payment of the fee-farm rent of 25 lls. 7c1., in the Summons and Plaint mentioned ; that the Declaration of Title was duly registered and all conditions, &c., necessary to make the said Declaration conclusive and indeÂÂfeasible against the Plaintiff and all other persons, and that by reason of the premises the Defendant was not liable to pay the rent of 11d. per acre in the Summons and Plaint mentioned. To that defence the Plaintiff demurred. The following are the material clauses of the Landed Estates Court Declaration :- " It recited that, on the 3rd of February, 1862, William Cowper Rochfort presented a petition with his title annexed to an estate in fee simple in the lands of Emorelly, Ballytinny, and Ballynegillog, now called Buckroney, and VoL. COMMON LAW SERIES. 91 Sallymount, in the barony of Arklow and county of 'Wicklow, and to a...