Coates v Kenna

• Jurisdiction: Ireland
• Judgment Date: 24 January 1873
• Date: 24 January 1873
• Court: Court of Appeal in Chancery (Ireland)

V. C. Court.

COATES

and

KENNA.

Beaumont v. Bramby T. & R. 41.

Daniel v. Davison 16 Ves. 249.

Bailey v. RichardsonENR 9 hare, 734.

Davies v. DaviesENR 4 Beav. 54.

Agra Bank v. Barry I. R. 6 Eq. 128.

Le Neve v. Le NeveENR Amb. 436.

Thompson v. SimpsonUNK 1 D. & War. 459, at p. 487.

Rolland v. HartELR L. R. 6 Ch. App. 678.

Lloyd v. BanksELR L. R. 3 Ch. App. 488.

Bailey v. LloydENR 5 Russ. 330.

Mignan v. ParryENR 31 Beav. 211.

Bunbury v. Lloyd 1 J. & L. 638.

Macnamara v. Carey I. R. 1 Eq. 9.

Milner v. Milner 8. Ir. Eq. R. 488.

Alexander v. Crosbie 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 of Bengal v. Fagan 7 Moo. P. C. C. 45.

Mignan v. ParryENR 31 Beav. 211.

Agreement to grant Lease — Recital — Memorandum endorsed — Purchase for value without Notice — Registration — Notice.

VOL. VI.] EQUITY SERIES. 401 namely, to bar any entail that might exist in him under the deed V. C. Court. of 1792. That was only part of the general purpose of giving a 1872. clear estate in fee to the mortgagees, which he joined in doing, GUARDIAN Co. CO . R U ASS without any reservation. I am willing to believe that, at the v. time, he thought his father was seised in fee, for, otherwise, he VISCOUNT . would have been a party to a gross fraud upon the Plaintiffs. I ANON'VLORE shall, therefore, hold him bound, to the full extent of the estate he then had in the lands, to make good his representations and supÂÂport his grant, and declare the Plaintiffs' mortgage well charged on the life estate of the Defendant Lord Avonmore in the mortÂÂgaged premises. The questions between the present Lord and the personal representatives of his father, as to their respective shares of liability, must be adjusted between them in another suit, and. can be raised and disposed of in the suit already pending for the administration of the late Lord's assets. Solicitor for the Plaintiffs : Mr. F. Sutton. Solicitor for the Defendants Lord. and. Lady Avonmore, and the minor : Mr. J. Julian. Solicitors for the executors of the late Lord Avonmore Messrs. Geale 83, Dwyer. COATES v. KENNA. V. C. Court. Agreement to grant Lease-Recital-Memorandum endorsed-Purchase for 1872. value without Notice-Registration--Notice. May 9, 10. A lease, executed in 1823, recited an agreement to grant a lease for forty-one years and one life, but the operative part merely demised the premises for forty-one years, and on the lessee's part of the lease-but not on the lessor's-was endorsed a duly signed and witnessed memorandum of agreement that the lessee was to hold for one life in addition to the forty-one years : the reversion having been subsequently conveyed by a registered deed to a purchaser for value,. who, before completing his purchase, got a copy of the lessor's part, but had no knowledge of the existence of the memorandum or notice, save from the reÂÂcitals in the lease, of any agreement to grant the further term :- Held (1) that the memorandum endorsed was not the agreement, but only evidence of it ; (2) that the agreement was completely proved by the memoranÂÂdum and the recitals ; (3) that the recitals gave the purchaser notice of the• VoL. VI. 2 right of the tenant ; (4) that, even as against a registered deed, notice of a right is enough, without notice of the evidence by which it can be established; and that, therefore, the purchaser was bound by the agreement that the tenant was to hold for the additional life. BILL by the Plaintiffs-who held under a lease for forty-one years from the lst of November, 1823-praying a declaration that they were entitled to the benefit of an agreement for a lease for one life in addition to the term, and that the lease might be reÂÂformed, by inserting a demise for the life of the Marquis of Kildare concurrently with the term of forty-one years ; or, that the PlainÂÂtiffs were entitled to a lease for the life of the Marquis of Kildare. By lease of the 6th January, 1815, Anthony Browne demised to Richard Roper part of the lands of Mullagh, for a term of thirty-one years ; and by an endorsement on the lease, Browne agreed that Roper should hold the lands for the life of Joseph Browne, or thirty-one years, whichever should last the longest. The reversion beÂÂcame subsequently vested in J. T. Kennedy, and by lease of the 27th October, 1823-reciting that Roper had requested Kennedy to accept a surrender of the lease of 1815, and to execute to him a new lease for a term of forty-one years or one life, whichever should last the longest ; that Kennedy had agreed so to do ; and that Roper had surrendered the lease and the premises therein--KenÂÂnedy demised the lands comprised in the former lease to Roper, his executors, and administrators, for the term of forty-one years from the 1st November then last past. On the tenant's part of this lease was endorsed a memorandum of even date, signed by Kennedy and Roper, and witnessed by two witnesses (one of whom was Kennedy's solicitor, and both of whom were dead at the time of the filing of the bill), which stated that it was agreed between the parties that the life of the Marquis of Kildare should be added to the term of the lease, and that Roper should hold the demised preÂÂmises for the life of the Marquis of Kildare, as well as for the term of forty-one years. No such memorandum- was endorsed on the landlord's part ; but on both parts, wherever the words " executors, &c.," occurred, there were erasures, where, apparently, the word " heirs" had been originally written. VOL. VI.] EQUITY SERIES. 403 By indenture dated the 27th October, 1823, and duly regis- V. C. Court. tered, these lands were, with others, put in settlement on the occa- 1872. sion of the marriage of the daughter of Kennedy with R. G. Born- COATES ford ; and by a subsequent deed, dated 14th October, 1845, Mrs. Bomford was given a life estate in the lands, in place of an annuity which she had by the former deed. Kennedy died in 1832, leavÂÂing Mrs. Bomford his only child ; and she, surviving her husband, who died in 1846, married, secondly, Archbishop Beresford. The Defendants, James and Patrick Kenna, agreed in 1858 to purchase the lands from the persons entitled under the settlement of 1823, subject to the life estate of Mrs. Beresford. During the negotiation for the purchase, they were furnished by the solicitors for the vendors with a rental, in which these lands were described as held by Richard Roper under a lease for forty-one years, from the 1st November, 1822; and by deed, dated the 27th May, 1858, and subsequently registered, the lands were conveyed to the DeÂÂfendants in fee, subject to the life estate of Mrs. Beresford, and to the tenants' leases thereon. Richard Roper died in 1868, having by his will devised and bequeathed his interest in the lands to the Plaintiffs as trustees. Mrs. Beresford, the tenant for life, died on the 1st July, 1870; and in November, 1870, the Defendants presented a petition to the Landed Estates Court, stating the settlement of the 14th October, 1845, and the conveyance of the 27th May, 1858 ; that Mrs. Beresford had been in receipt of the rents and profits up to the day of her death, on the 1st of July, 1870, and that, thereÂÂupon, the Defendants became entitled to the possession ; and prayÂÂing a declaration of their title, free from all tenancies except those specified in the schedule, in which M. W. Coates was stated to have been a tenant of Mrs. Beresford, under a lease dated the 27th October, 1823, for forty-one years from the 1st November, 1822, and that, on the expiration of the lease, he continued to hold as tenant from year to year ; to which was added an observation, that M. W. Coates claimed to hold, during the life of the Marquis of Kildare, under an agreement alleged to have been made on the 27th OctoÂÂber, 1823, to add the life of the Marquis of Kildare to the lease, but that the claim was not admitted. The Plaintiffs, thereupon, served a notice claiming the right to the additional term, and offer 2 1) 2 404 THE IRISH REPORTS. [I. R. V. C. Court. ing to file an objection in the Landed Estates Court; which course 1872. was declined by the Defendants, who served the Plaintiffs with a COATES notice to quit, and brought an ejectment founded thereon ; where- KENNA. upon the Plaintiffs filed the present bill, in their answer to which the Defendants relied on the defence of purchase for value without notice, both as regarded R. G. Bomford and themselves, and claimed the benefit of the Registry Acts. The evidence as to notice was, in substance, that the Defendants did not know of the existence of the memorandum endorsed on the lease until the year 1863, shortly before the expiration of the term, when they were informed of it in the course of a negotiation with Mrs. Beresford for a lease for her life ; before the completion of their purchase, however, they got a copy of the lease, with other leases, from the vendors' solicitor, who took it from and compared it with the original counterpart in the possession of the tenant for life, and it was also compared by a clerk of the Defendants' soliciÂÂtor with the original, which was handed over to the Defendants on the death of the tenant for life ; and the rental furnished to them. Was taken from an old rental which came from the hands of the agent of the tenant for life. Mr. Walsh, Q. C., Mr. Law, Q. C., and Mr. Price, for the Plaintiffs. The recitals in the lease gave notice to the Defendants of the agreement to add a life to the lease, for notice to the solicitor is actual, not constructive, notice to the client : Beaumont v. BramÂÂby (1) ; Daniel v. Davison (2) ; Bailey v. Richardson (3) ; Davies v. Davies (4) ; Agra...