Clarke v Armstrong

Judgment Date16 January 1860
Date16 January 1860
CourtRolls Court (Ireland)



Lessee Fleming v. Melville Hayes, 23.

Fury v. Smith 1 H. & Br. 735.

Warburton v. Ivie 2 Dow. & Cl. 494.

Popham v. Baldwin 2 Jones, 320.

Drew v. Lord NorburyUNK 3 J. & Lat. 267.

Mill v. Hill 3 H. of Lords, 828.

Fury v. Smith 1 H. & Br. 751.

CHANCERY REPORTS. 263 CLARKE v. ARMSTRONG. (In the Rolls.) JOSEPH OLIVER, William Oliver and Benjamin Oliver, being possessed, under a lease of the 9th of February 1767, and two renewals thereof, of the 30th of April 1804, and the 30th of October 1818, of the lands of Derryha, in the county of Armagh, for fourteen years, with a toties quoties covenant for renewal, by a lease bearing date the 26th of October 1819, demised to John Clarke, his executors, administrators and assigns, twelve acres of the lands, for fourteen years from the 1st of November 1818. The lease contained a memorandum that the lessee, on payment of a fine of five shillings, should have a renewal for fourteen years, and a toties quoties clause of renewal, such as the lessors themselves had, under the lease of the 9th of February 1767. The lease of the 26th of October 1819 was not registered. On the 31st of October 1855, the respondent, W. J. Armstrong, in whom the interest of the lessor in the lease of 1767 was vested, obtained a perpetuity grant from the College ; and, on the 28th of October 1858, J. T. ArmÂÂstrong, another respondent, purchased the interest of the Olivers for the sum of 835, and it was assigned to him by a deed of that date, in trust for the other respondent, W. J. Armstrong. The deed of assignment was registered. The petition was filed by the parties claiming the interest of Clarke, the lessee in the lease of the 26th of October, for a renewal, pursuant to the covenant contained in that lease. The defences set up by the affidavit were, that a non-alienation clause contained in the original lease of the 9th of February 1767 had been broken by the lease of the 26th of October 1819, and convenience, any part of the premises included in a lease containing clause, does not authorise an assignment of them. 1859. Rolls. CLARKE V. ARMSTRONG Statement. 264 • CHANCERY REPORTS. by the assignment by the lessor under whom the petitioners claimed, which were made without the consent of the lessors ; and lastly (which was the point decided), that the respondents were purchasers for valuable consideration, without notice of the unregistered lease of the 26th of October 1819, by the registered deed of the 20th of October 1858. The defences founded on the non-alienation clause were encountered, on behalf of the petitioner, by a clause in one of the renewals of the 30th of April 1804, whereby the lessee and his assigns had liberty granted to them to set any part of the premises as should answer ,his or their convenience. The title of the petitioners and the respondents is fully traced in the judgment of the MASTER OF THE ROLLS. Argument. Mr. Brewster, Mr. Lawson and Mr. Hugh Harris, for the petiÂÂtioners. The clause against alienation, in the lease of 1767, was entirely discharged and put an end to by the license to alien contained in the renewal of 1804. The lease of 1819 is within the express terms of that license, and so are the assignments under which petitioners make out their title. Rent has been paid and accepted since, and that would waive the forfeiture, if any had been comÂÂmitted. The defence on the Registry Act is met by the 14th section of the Registry Act, 6 Anne, c. 4, by which it is enacted that the " Act shall not extend to any lease or. leases for years, not exceeding twenty-one years, where the actual possession goeth along with the said lease, anything in this Act contained to the contrary thereof in anywise...

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2 cases
  • Coates v Kenna
    • Ireland
    • Court of Appeal in Chancery (Ireland)
    • 24 January 1873
    ...Ll. & G. t. Sugd. 145. Cordwell v. MackrillENRENR Amb. 515; S. C. 2 Eden, 344. Popham v. Baldwin 2 Jones, 320. Clarke v. Armstrong 10 Ir. Ch. R. 263. Chadwick v. TurnerELR L. R. 1 Ch. App. 310. unter v. WaltersELR L. R. 7 Ch. App. 75. Rophart v. The Bank of EnglandENR 17 C. B. 161. The Bank......
  • Reilly v Garnett
    • Ireland
    • Court of Appeal in Chancery (Ireland)
    • 12 November 1872
    ...I. R. 6 Eq. 445. Wyatt v. Barwell 19 Ves. 435. Chadwick v. TurnerELR L. R. 1 Ch. 310. Popham v. Baldwin 2 Jo. 320. Clarke v. Armstrong 10 Ir. Ch. R. 263. Hunsden v. CheyneyENR 2 Vern. 149. Raw v. PoteENR 2 Vern. 239. Govett v. RichmondENR 7 Sim. 1. Tibbits v. Tibbits 19 Ves. 663. Shaw v. La......

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