Cartan v Bury

• Jurisdiction: Ireland
• Judgment Date: 18 April 1860
• Date: 18 April 1860
• Court: Rolls Court (Ireland)

Rolls.

CARTAN

and

BURY.

Lennon v. Napper 2 Sch. & Lef. 683.

Clarke v. MooreENRUNK 1 Jo. & Lat. 773; S. C., 7 Ir. Eq. Rep. 515.

Burke v. SmythENRUNK 3 Jo. & Lat. 193; S. C., 9 Ir. Eq. Rep. 135.

Sharpe v. MilliganENR 22 Beav. 606.

Brophy v. Connolly 7 Ir. Chan. Rep. 173.

Gomley v. The Duke of Somerset 1 Ves. & B. 168.

Jones v. Jones 12 Ves. 186.

Pain v. CoombsENR 3 Sm. & Gif. 449; on Appeal, 1 De G. & J. 34.

Davis v. Howe 2 Sch. & Lef. 341.

Lennon v. Napper 2 Sch. & Lef. 683.

Croft v. LumleyENR 5 El. & Bl. 648, 682; on Appeal, 6 H. L. Cas. 672.

Bridges v. LongmanENR 24 Beav. 27.

Carolan v. BrabazonENR 3 Jo. & Lat. 200; S. c., 9 Ir. Eq. Rep. 224.

Walker v. JeffreysENR 1 Hare, 348.

Hill v. Barclay 18 Ves. 56.

Brown v. Royal Insurance Company 5 Jur., N. S., 1255.

Parker v. ThoroldENR 16 Beav. 65.

Roberts v. BerryENR 16 Beav. 31.

Clarke v. MooreENR 1 Jo. & Lat. 727.

Thorp v. MilliganENR 22 Beav. 613.

Burke v. SmytheENR 3 Jo. & Lat. 198.

Lewis v. BondENR 18 Beav, 87.

Gregory v. WilsonENR 9 Hare, 687.

Nun v. TrescottENR 3 De G. & Sm. 304.

Pain v. CoombsENR 1 De G. & Jones, 34. See the decree in Frogley v. Lord Lovelace, 1 Johnson, 340.

Walker v. JeffreyENR 1 Hare, 352.

Pain v. Coombs 1 De G. & Jones, 34.

Denton v. RichmondUNK 3 Tyrw. 630.

Carolan v. BrabazonUNK 3 J. & lat. 200.

Moore v. CroftonUNK 3 J. & Lat. 438.

Brophy v. Connolly 7 Ir. Chan. Rep. 137.

CHANCERY REPORTS. 387 1860. Rolls. Jan. 26. April 18. THE petition was' filed on the 9th of February 1859, for a specific An agreement to let lands performance of an agreement, bearing date the 12th of 'January contained a clause that the 1852, to grant a lease to the petitioners. Immediately after the tenants should repair the agreement the petitioners had gone into possession, The defences dwelling-house set up by the respondents were, first, that the petitioner did not, within two years, and according to the terms of the agreement, execute and complete a put a new roof on it ; the lease, within six months from the date of the agreement. Secondly ; landlord to bear one-half that they did not comply with the terms of the agreement, which of the expense, the tenants to required them to put a new roof on the dwelling-house, within execute and complete a two years. Thirdly ; a waiver of the agreement. The agreement, lease, at their own expense, and the facts of the case, are stated at length in the judgment of within six from months the MASTER OF THE ROLLS. the date of the agreement.-Held, that in Euit Mr. J. E. Walsh and Mr. Hemphill, for the petitioners, con- waqs not of time the tended-- essence of the contract. First.-That time was not, in Equity, of the essence of the In cases be- tweet land- contract, unless there was in the agreement a direct stipulation lord and te- nant, where the to that effect, which there was not in this agreement ; and the tenant has doctrine of lathes did not apply, because the petitioners had been in - been in pos session under possession ever since the agreement : Lennon v. Napper (a) ; the agreement, and has not been required by the landlord to take out a lease, lapse of time is not a good defence to a suit for specific performance. Where the acts of the party to a contract are such as would have worked a forfeiture of all benefit of the contract if it had been executed, the Court will not decree a specific performance. But when there is a doubt as to whether there has been any breach of the contract, and the evidence is conflicting, or the breaches of the agreement are nominal, the Court may make a decree, leaving the respondent to his remedy at Law. In this case, it being alleged that the petitioners had not repaired the dwelling-house, according to the agreement, the Court directed the lease to be antedated. - Letters and conversations, after a notice to quit had been served by the landlord, them being a conflict of evidence as to the result and object of the conversations, Held, not to be a waiver of an agreement for a lease. (a) 2 Sch. & Lef. 6E3. 388 CHANCERY REPORTS. Clarke v. Moore (a); Burke v. Smyth (b); Sharpe v. Milligan (e); Brophy v. Connolly (d). Secondly.-As to the petitioners not having complied with that part of the agreement which required a new roof to be put on the dwelling-house, there had been no breach of the agreement ; but if there had, it was not a good defence to a suit for specific performance, and the respondents should be left to their remedy at Law : Gomley v. The Duke of Somerset (e); Jones v. Jones (f); Pain v. Coombs (g); Brown v. The Marquis of Sligo, since reported (h); and there had been a waiver, by the respondent Bury, of that part of the contract: Davis v. Howe (1); , Lennon v. Napper (k); Croft v. Lumley (1); Bridges v. Longman(m). Thirdly.-That there had been no waiver or abandonment, by the petitioners, of the contract : Carolan v. Brabazon (n). Mr. F. W. Walsh and Mr. Tandy, for the petitioners, contended, First.-That there was a direct clause in the contract requiring the lease to be completed within six months, which made time of the essence of this contract, even in Equity : Walker v. Jeffreys (o). The cases cited for the petitioners did not apply, where a time was fixed for the execution of the contract : Lord St. Leonards on Vendors, pp. 221, et seq. Secondly.-The charge as to repairing of the roof of the dwelling-house was an essential part of the agreement. No damages would put the respondents in the same position they would have been in if it had been performed ; and the Court would not decree a specific (a) 1 Jo. & Lat. 773 ; S. C., 7 Ir. Eq. Rep. M5. (b) 3 Jo. & Lat. 193; S. C., 9 Ir. Eq. Rep. 135. (c) 22 Beay. 606. (d) 7 Ir. Chan. Rep. 173. (e) 1 Yes. & B. 168. (f) 12 Ves. 186. (g) 3 Sm. & Gif. 449 ; on Appeal, 1 De G. & J. 34. (h) 10 Ir. Chan. Rep. 1. (i) 2 Sch. & Lef. 341. (k) 2 Sch. & Lef. 683. (1) 5 EL & Bl. 648, 682 ; on Appeal, 6 H. L. Cas. 672. (m) 24 Beay. 27. (n) 3 Jo. & Lat., 200; S. C., 9 Ir. Eq. Rep. 224. (o) 1 Hare, 348. CHANCERY REPORTS. 389 performance without it : Hill v. Barclay (a);" Lord St. Leonards on Tien. and Pur., p. 186 ; Brown v. Royal Insurance Company(b). Thirdly.-The dealings and conversations after the service of the notice to quit amounted to a waiver of the agreement. 1860. Rolls. CARTAN V. BURY. The MASTER OF THE ROLLS. April 18. The petition in this case has been filed for the specific per- Judgment. formance of a written agreement entered into by the respondent James Bury, to make a lease to the petitioners, of the lands of Woodpark in the county of Wexford, for the term in the agreement mentioned. The agreement bears date the 12th of January 1852. The petition was filed on the 7th of February 1859, against the respondent James Bury ; and the said lands having been purchased by Richard Keegan, with express notice of the said agreement, and a conveyance, bearing date the 14th of March 1859, having been executed to the said Richard Keegan by the said James Bury, the petition was amended on the 11th of June 1859, by making Richard Keegan a respondent, and praying that he might execute a lease to the petitioners, in pursuance of the said agreement. Richard Keegan having died, his personal representative and heir-at-law have been brought before the Court by suggestion. The petition states that, in and prior to the month of January 1852, the reÂspondent James Bury was seised of the lands of Woodpark, in the county of Wexford; and being so seised, the said James Bury entered into an agreement in writing with the petitioners, which was signed by the said James Bury and by the petitioners, and which was as follows :-" Memorandum of agreement, made this 12th day of January 1852, between James Bury of Roseville, in the county Kildare, Esq., of the one part, and Timothy Cartan and Matthew Cartan, both of Moneycross, in the county Wexford, of the other part. Whereas James Bury proposes to let, and Timothy and Matthew Cartan propose to take, that part of the lands of Wood-park in the said county of Wexford, as lately held by Martin Lacy and Matthew Lawless (except three small fields given to the widow Byrne), containing about fifty-four or fifty-five Irish acres, the exact (a) 18 Ves. 56. (b) 5 Jur., N. S., 1255. 390 CHANCERY REPORTS. measurement to be inserted when ascertained, at the yearly rent of twenty-five shillings per Irish acre, to commence rent from the 25th day of March next, 1852, for the lives of the two eldest sons of Her present Majesty, Queen Victoria, or thirty-one years. • The said Timothy and Matthew Cartan not to be at liberty to sell, sublet or assign said lands, under forfeiture of lease, without the consent in writing of said James Bury, first had and obtained. The said Timothy and Matthew Cartan to be bound to repair the dwelling-house held by Martin Lacy on said lands, within two years from this date, and to put a new roof, of foreign timber and slates, on same, for which, when done and completed, the said James Bury shall bear one-half the expense. The said Timothy and Matthew Cartan to be bound to execute and complete a lease, at their own expense, within six months from the date hereof.--Signed by us, " JAMES BURY. " TIMOTHY CARTAN. " MATTHEW CARTAN. " Witness.- MATTHEW SEERY." The petition further states that, immediately after the execution of the said agreement, the petitioners entered into, and have since continued in possession of, the premises in said agreement menÂtioned. That while so in possession, and on the faith of said agreement, the petitioners expended about £10 in repairing the roof of the said dwelling-house, and also, at a great outlay, put a new roof on the out-offices on said premises, which are from eighty to ninety feet in length, and expended considerable sums of money in the improvement of said land. That the petitioners have also paid the said James Bury the rent of said lands, pursuant to said agreement. That, on the 22nd day...