Doody v Nolan

• Jurisdiction: Ireland
• Judgment Date: 18 February 1878
• Date: 18 February 1878
• Court: Unspecified Court

Appeal.

Before BALL, C., MAY, C. J., CHRISTIAN, and DEASY, LL.J.

DOODY AND ANOTHER

and

NOLAN

Roberts v. RobertsENR 2 B. & Ad. 367.

Philpotts v. PhilpottsENR 10 C. B. 85.

Pitt v. ChappelowENR 8 M. & W. 624.

Hayne v. MaltbyENR 3 T. R. 438.

Donoughmore v. ForrestUNK Ir. R. 5 C. L. 443.

Tobin v. ClearyUNK Ir. R. 7 C. L. 17.

Haines v. BuskENR 5 Taunt. 521.

Wetherell v. JonesENR 3 B. & Ad. 221.

Waugh v. MorrisELR L. R. 8 Q. B. 202.

Bartlett v. VinorENR Carth. 252.

Troy v. Kirk Alc. & Nap. 326.

Davis v. DavisUNK 4 Ir. L. R. 353.

Leitch v. Simpson Ir. R. 5 Eq. 613.

Meara v. Meara 8 Ir. Ch. R. 37.

Northcote v. UnderhillENR 1 Salk. 199.

Pordage v. ColeENR 1 Wms. Saund. 548.

Bowes v. CrollENR 6 E. & B. 255.

Pitman v. WoodburyENR 3 Ex. 4.

Swatman v. AmblerENR 8 Ex. 72.

Wood v. The Governor and Company of the Copper Miners in EnglandENR 14 C. B. 428.

How v. GreekENR 3 H. & C. 391.

Boyle v. MonkUNK 7 Ir. C. L. R. 279.

Bowes v. CrollENR 6 E. & B. 255.

Lloyd v. CrispeENR 5 Taunt. 249.

Wilkinson v. Lloyd 7 Q. B. 27.

Meara v. Meara 8 Ir. Ch. R. 37.

Church v. Brown 15 Ves. 265.

Earl of Oxford's Case 2 Wh. & Tud. L. C. 595.

Mouys v. LeakeENR 8 T. R. 411.

Kerrison v. ColeENR 8 East, 231.

Troy v. Kirk Alc. & Nap. 326.

Montgomery v. Graham 5 Law Rec. (N. S.) 23.

Butler v. SmithUNK 16 Ir. C. L. R. 213.

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

Donoughmore v. ForrestUNK Ir. R. 5 C. L. 443.

The Duke of Leinster v. MetcalfUNK 11 Ir. L. R. 365.

Gillman v. MurphyUNK Ir. R. 6 C. L. 34.

In re Coffey's Estate Ir. R. 4 Eq. 47.

Bartlett v. VinorENR Carth. 252.

Paxton v. PophamENR 9 East, 421.

Pole v. HarrobinENR 9 East, 416, n.

Collins v. BlanternUNK 1 Sm. L. C. 388.

Chandler v. FordENR 3 Ad. & E. 654.

Laughton v. HughesENR 1 M. & S. 593.

De Begnis v. ArmisteadENR 10 Bing. 109.

The Gas Light and Coke Company v. TurnerENR 6 Bing. N. C. 324.

Lord Donoughmnore v. ForrestUNK Ir. R. 5 C. L. 443.

Wilbraham v. LivesayENR 18 Beav. 206.

Hampshire v. Wickens 15 Ves. 258.

Kearney v. Ryan 2 L. R. I. 61.

— Assignment without consent of landlord — Covenant to deliver up the possession of lands — Dependent covenant — Illegality — Estoppel.

VOL. Q. B., C. P., & EL DIVISIONS. 199 Appeal. 1878. Landlord and Tenant (Ireland) Act, 1860, s. 10-Assignment without consent Jan of landlord-Covenant to deliver up the possession of lands-Dependent cove- . . 31 nant- Illegality-Estoppel. Feb. 18. To an action for not delivering up to the Plaintiffs certain lands, purÂsuant to a covenant in a deed of marriage settlement whereby the Defendant assigned the lands to the Plaintiffs, the Defendant pleaded that the lands were in 1853 demised to and were by him held under a lease containing a clause forbidding him to assign, let, or sublet the lands, or any part of them ; that the deed of marriage settlement was made subsequent to the 23 & 24 Viet., c. 154, s. 10 ; that the consent of the landlord, or his agent lawÂfully authorised, was never obtained to the said deed of assignment, and that consequently the deed was unlawful and void, and the covenant sued, on being one of the covenants contained in it and being made concerning the assignÂment of said lands to the Plaintiffs, was also null and void on demurrer -affirming the decision of the Court of Common Pleas-(Ciraisrurr, L. J., disc.), (1) that the covenant was dependent on the deed, and fell with it; (2) that the Defendant was not estopped from pleading the illegality. APPEAL by the Plaintiffs from an order of the Court of ComÂmon Pleas overruling the Plaintiffs' demurrer to the third plea of the Defendant to all the counts of the summons and plaint: The ease is reported in the Court below, Ir. R. 11 C. L. 23. The first count complained as follows :- That by deed bearing date the 18th day of February, 1871, and expressed to be made between the Defendant of the first part, Laurence Nolan of the second part, Margaret Fewer and Johanna Fewer of the third part, Catherine Nolan of the fourth part, and the Plaintiffs [James Doody and John Nolan, junior] of the fifth part, and sealed with the seal of the Defendant, the Defendant coveÂnanted with the Plaintiffs to deliver up unto the Plaintiffs on the 1st day of March, 1875, all that and those that part of the lands of -WhiteÂhall, in the barony of Iverk, and county of Kilkenny, containing fifty acres, Irish plantation measure, or thereabouts, then in the possession of the Defendant, free from all incumbrances save the (1) Before BALI, C., 31sy, C. J CHRISTIAN, and DEARY, LL.J. VOL. II. • trusts by the said. deed created, and all conditions were performed and. fulfilled and all things happened and exist, and all times elapsed necessary to 'entitle the Plaintiffs to a performance of the said covenant of the Defendant, and to maintain this action for the breach hereinafter alleged. ; yet the Defendant did not on the said 1st day of March, 1875, or ever, deliver up to the Plaintiffs, or either of them, the said lands or any part thereof; to the Plaintiffs' damage £5000. There were three other counts in the summons and plaint deÂclaring on the same covenant, but they varied from the above in no material particular ; two of them contained a claim for special damage. To all these counts the Defendant pleaded amongst other pleas the following : " And for a further defence to the several counts of the sumÂmons and plaint, and which, to avoid prolixity, he prays may be taken as pleaded to each separately and distributively, the DeÂfendant says that the lands in said counts respectively mentioned were demised. to the Defendant by a certain lease, made by and between the Right Honourable Thomas Lefroy and. the Defendant, and bearing date the 2nd day of December, 1853, and were and are held and. enjoyed by the Defendant under said lease ; and. in said lease there was and is contained a clause that the DefenÂdant should not assign, let or'sublet the said lands, or any part thereof ; and. the indenture of the 18th of February, 1871, in each of said counts mentioned., was made after the passing of a certain Act of Parliament, passed. in a Session of Parliament holden in the 23rd. and. 24th years of the reign of Her Majesty Queen Victoria,, - and. by said. Act it was enacted. that where any lease has been or shall be made, containing an agreement restraining or prohibit-' ing assignment, it shall not be lawful to assign the lands, or any part thereof, contrary to such agreement, without the consent, in writing, of the landlord or his agent thereto lawfully authorised, in writing, testified by his being an executing party to the instrument of assignment, or by an indorsement on or subscription of such instrument ; and the Defendant says that no consent, in writing of the landlord or his agent thereto lawfully authorised in writing testified in the manner as by said Act of Parliament prescribed, VOL. II.] Q. B., C. P., & EX. DIVISIONS. 201 was ever obtained to said. indenture of assignment, in each of said. Appeal. counts respectively mentioned, and the said indenture of assign- . 1878 ment was unlawful and void ; and the Defendant avers that each Doony v. and every of the covenants in each of said counts respectively &J AN.. mentioned were and are contained in said indenture of assignment, and were and are made of and concerning the assignment of the said lands in each of said counts respectively mentioned, and the Said covenants and each and every of them were and are null and void." To this defence the Plaintiffs demurred on the following grounds : That as pleaded to the several counts it was not good in subÂstance, because the respective covenants therein respectively sued. -upon were not null and void, and were not forbidden by the express or implied enactment of any statute, and because a perÂformance by the Defendant of these covenants would not be a. breach of the clause not to assign, let or sublet the said lands in the defence mentioned, and because the covenants were distinct, separate, and independent covenants, and did not refer to and were not dependent upon any estate in the said lands passing by the deed of the 18th of February, 1871, and because it did not appear from the said defence that the Defendant ever applied to the landÂlord of the premises for his consent to the assignment, or that he ever refused his consent thereto, OD to testify same ; and because it was quite consistent with the allegations in the defence, that the Defendant purposely abstained from obtaining such consent, and that the landlord would, if required, have testified his consent ; and because the Defendant was estopped from saying that no estate passed by the deed of the 18th of February, 1871. The lands in question were held by the Defendant under an accepted proposal in writing for a tenancy from year to year, under Lord Chief Justice Lefroy, which was dated the 2nd of December, 1853. Amongst other agreements on the part of the tenant it contained the following :- " I agree . . . . not to assign, let or sublet, or let out to con-acre the said lands, or any part thereof, and not to build or erect on said' lands any cottier's dwelling-house or any other house, except that or those now erected on the said farm as a dwelling-. 2 202 LAW REPORTS (IRELAND). [L. R. I. Appeal. house and. out-offices, or except any further out-offices required for 1878. the farm. I also agree that the said Chief Justice, or any landlord DOODY for the time being, may enforce the specific performance of said Z' agreements by bill in equity, or by an action at law, or to recover an additional £1 per acre, or avoid the lease, at his or their option, for the whole of said lands, in ease of the breach of any of said. covenants." The deed of marriage settlement, which was dated the 18th of February, 1871, and made between the parties in the count menÂtioned, began by reciting that " John Nolan, senior, holds part of...