Carroll v Keayes. Keayes v Carroll

• Jurisdiction: Ireland
• Judgment Date: 01 December 1873
• Date: 01 December 1873
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

CARROLL

and

KEAYES.

KEAYES

and

CARROLL.

Harnett v. Yeilding 2 Sch. & Lef. 554.

Lake v. DeanENR 28 Beav. 607.

Allen v. AnthonyENR 1 Mer. 282.

Taylor v. Stibhert 2 Ves. Jun. 437.

Hiern v. Mill 13 Ves. 120.

Daniels v. Davison 16 Ves. 249; 17 Ves. 433.

James v. LichfieldELR L. R. 9 Eq. 51.

Hughes v. Jones 3 De G. F. & G. 307.

Monro v. TaylorENR 8 Hare, 56.

Gwynn v. Lethbridge 14 Ves. 585.

Manser v. BackENR 6 Hare, 443.

Watson v. MarstonENR 4 De G. M. & G. 230.

Wood v. ScarthENR 2 K. & J. 42.

Marquis of Townshend v. Stangroom 6 Ves. 328.

Lehmann v. M'ArthurELR L. R. 3 Ch. App. 496; S. C., L. R. 3 Eq. 746.

Maxwell v. ParnellUNKIR I. R. 1 C. L. 242.

Flureau v. Thornhill 2 W. Bl. 1078.

Nelthorpe v. HolgateENR 1 Coll. C. C. 203.

Gilman v. MurphyUNKIR I. R. 6 C. L. 34.

Leathem v. AllenUNK 1 Ir. Ch. Rep. 683.

Fennelly v. Anderson Ibid. 706.

Linehan v. ColterUNK 7 Ir. Eq. Rep. 176.

Lake v DeanENR 28 Beav. 607.

Nelthorpe v. HolgateENR 1 Coll. C. C. 203.

Hall v. Smith 14 Ves. 426.

Clive v. BeaumontENR 1 De G. & Sm. 347.

Gaston v. FrankumENR 2 De G. & Sm. 561.

Spunner v. WalshUNK 10 Ir. Eq. Rep. 386.

Pope v. Garland 4 Yo. & Coll. 394.

Vignolles v. BowenUNK 12 Ir. Eq. Rep. 194.

Coppinger v. GubbinsENR 3 Jo. & Lat. 397.

Parker v. Taswell 2 De G. & Jo. 559.

Marchioness of Ely 11 Jur. N. S. 32.

Dyer v. Hargrave 10 Ves. 305.

Gray v. Turnbull L. R. 2 Sc. App. 53.

Marquis of Thowshend v. Stangroom 6 Ves. 338.

Watson v. MarstonENR 4 De G. M. & G. 240.

Daniels v. Davison 16 Ves. 248.

James v. LichfieldELR L. R. 9 Eq. 55.

Bowles v. Round 5 Ves. 508.

Martin v. CotterENR 3 Jo. & Lat. 506.

Taylor v. Stibbert Ubi sup.

Daniels v. Davison Ubi sup.

Jones v. SmithENR 1 Hare, 43.

Allen v. AnthonyENR 1 Mer. 282.

James v. LichfieldELR L. R. 9 Eq. 51. See note, p. 138, post.

Specific performance — Vendor and vendee — "Possession" of lands sold — Inspection of premises by purchaser — Parties in visible occupation — Constructive notice of tenacies.

VOL. VIII.] EQUITY SERIES. '97 CARROLL v. KEAYES. Ch. App. KEAYES v. CARROLL. 1873. Nov. 17, 18, Specific performance-Vendor and vendee-" Possession" of lands sold-In- 19, 20, 21. spection of premises by purchaser-Parties in visible occupation-Construc- Dec. 1. tive notice of tenancies. Early in 1871 K. entered into negotiations with C., who was D.'s executor, for the purchase of D.'s interest in certain lands. At that time K., who resided about six miles from the premises, visited and inspected them on several occaÂÂsions, and found two cottiers in occupation of portions thereof. The negotiaÂÂtions, which in that year proved abortive, were renewed early in the next, when, on the 6th March (without any previous allusion whatever having been made by either party to the occupation by the cottiers), an agreement was signed by C. " as such executor" to sell his testator's interest to K., who thereby underÂÂtook to pay the purchase money "on getting possession of said lands and preÂÂmises." K. revisited the lands on the 27th March, which he afterwards alleged to have been the first occasion of his becoming aware of the possession of the cottiers, who were and had been for a long period yearly tenants of their holdÂÂings. K. having subsequently declined to accept clear possession of less than the entire premises, C. (who refused to disturb the tenants or abate his purchase money on account of them, contending that he was not bound to do so under the agreement,) filed a bill against K. for specific performance, which K. also sought to enforce shortly after, according to his min view of the agreement, by a cross bill against C. praying for compensation in respect of the tenants' possession. The two causes came on for hearing together before the VICE-CHANCELLOR, who dismissed C.'s bill, and made a decree for K. in the terms sought, whereupon C. having appealed in both suits : Held (discharging the orders of the Court below), that K.'s bill should be dismissed, and that, inasmuch as the evidence showed him to have had notice of the tenancies and not to have objected to them previous to the signing of the agreement, he must be taken to have purchased subject to them, and that C. was therefore entitled to have the agreement specifically performed on making good title to the premises in all other respects. James v. Lichfield (L. R. 9 Eq. 51) followed, and reconciled with Nelthorpe v. Holgate (1 Coll. C. C. 203). APPEAL, by the Plaintiffs in the first suit, and by the same parÂÂties, Defendants in the second, from two several orders of the VICE-CHANCELLOR, dated the 10th of March, 1873. VOL. VIII. THE IRISH REPORTS. [I. R. The bill in the first case was filed on the 29th of May, 1872, by Thomas Carroll and Helena Dundon, as executor and execuÂÂtrix of Thomas Dundon (who died on the 11th of March, 1870), to compel the sole Defendant, Thomas Keayes, specifically to perform an agreement, dated the 6th of March, 1872, for the sale to him of their testator's interest in the residue of a twenty-one years' lease, from the 1st of May, 1866, of the lands of Annaholty. That agreement was as follows :- " Memorandum of agreement made and entered into this 6th day of March, 1872, between Thomas Carroll, and Helena Dundon, spinster, executor and executrix of Thomas Dundon, deceased, of the one part, and Thomas Keayes, gentleman, of the other part. Whereas the said T. Dundon, deceased, held under indenture of lease of the 23rd of September, 1867, made to him by Charles John Henry, Esq., that part of the town and lands of Annaholty, containing 120 A. l R. 2 P., plantation measure, together with the dwelling-house and offices thereon, situate [&e.], for the term of twenty-one years from the 1st day of May, 1866, subject to the yearly rent of £150, payable [&c : And whereas the said T. Carroll and H. Dundon, as such executor and executrix, have agreed with the said T. Keayes for the absolute sale to him of their interest in said lands for the sum of £1700: Now this agreement witnesseth that, in consideration of said sum of £1700, they, the said T. Carroll and H. Dundon, as such executrix and executor, do hereby agree to make and execute unto the said T. Keayes, whenever required so to do, a proper deed of conveyance of said lands and preÂÂmises, with the appurtenances, in as full, large, and ample a manner as the said T. Dundon held and enjoyed the same under said lease, said conveyance to be prepared by the solicitor for the said T. Keayes, and at his expense ; and they also hereby agree and promise to do all that may be in their power to obtain the consent of the said C. J. Henry to their making such assignment and conveyÂÂance, and will get all necessary parties to join in and execute same at their own expense. And they, the said T. Carroll and H. Dundon, do hereby also agree to pay all rent, rates, taxes, charges, and all other assessments of every kind, payable out of said lands, up to the day the said T. Keayes gets the possession of same ; the said T. Keayes hereby agrees to take said assignments on the terms aforesaid, and to pay said sum of £1700 on the execution by said T. Carroll and H. Dundon, and all other necessary parties, of said conveyance, on getting possession of said lands and premises. In witness [&.c.] " THOMAS CARROLL. " HELENA DIINDON. " THOMAS KEAYES. " Signed in the presence of " JAMES LYNCH." VOL. VIM] EQUITY SERIES. The Appellants filed interrogatories on the 17th of June, 1872, and on the 12th of July following the Respondent filed his bill, praying (1) that the agreement might be " specifically performed by the Defendants, the Plaintiff hereby offering to perform the same, so far as it remains on his part to be performed, and that the DeÂÂfendants may be ordered to deduce a good and marketable title to the said premises, and that a proper assignment by the Defendants and all other necessary parties may be made to the Plaintiff, and proper possession of said premises given by the Defendants to the Plaintiff." (2) " That if by reason of the possession of the said tenants, or any other defect in the title of the said premises or otherwise, the Defendants are unable to perform the said agreeÂÂment according to the terms thereof, then the Plaintiff may be deÂÂclared entitled to elect either to have the said agreement rescinded, or to have the same performed, with a compensation to be allowed to the Plaintiff out of his purchase-money, in respect of the posÂÂsession of the said tenants." (3) " If the Plaintiff elect to have the agreement performed with such compensation as aforesaid, then that the amount of such compensation may be ascertained and allowed to the Plaintiff" ; and (4) for the assessment of alternative damages, and the usual consequential relief. On the 6th of August the Respondent filed interrogatories, and his answer to the Appellants' bill on the 31st. The three followÂÂing paragraphs of that answer were specially referred to in the judgments of the Court: 4. "The Defendant says, and positively and distinctly charges, that neither at the time of the original negociations with the Plaintiffs for the purchase of the said lands in 1871 (hereinafter more particularly mentioned) nor at the subÂÂsequent negociations when the purchase of same was agreed upon, nor at the time of the preparation or execution of the agreement aforesaid, nor at any time whatsoever prior thereto, did the Plaintiffs or either of them, or any person whosoever, say one word as to the fact of any persons whomsoever being in posÂÂsession of portion of the said lands, and the fact was entirely unknown to, and unsuspected by, the Defendant until the Defendant went to inspect the lands at the time [27th March, 1872] and under the circumstances hereinafter menÂÂtioned, and the Defendant most positively denies that he had any knowledge whatsoever of the facts stated in the 6th paragraph of the...