Ex parte Domville; Re Fowler, Owner;

• Jurisdiction: Ireland
• Judgment Date: 07 June 1862
• Date: 07 June 1862
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

Ex parte DOMVILLE; In re FOWLER,

Owner;

Doe d. Mitchenson v. CarterENR 8 T. R. 57,300.

Avison v. HolmesENR 1 J. & H. 530.

Troy v. Kirk Al. & Nap. 326.

Doe d. Goodbehere v. BevanENR 3 M. & S. 353.

Kennard v. FutvoyeENR 2 Giff. 81.

CHANCERY REPORTS. 19 1862. Ch. Appeal. Court of appeal fit Cbattrerp. Ex parte DOMVILLE ; In re FOWLER, Owner ; Tam case came before the Court upon a petition of appeal, preÂsented by Sir Charles Domvile, against an order for the sale of a leasehold interest held under him. This interest was created by a lease of the 20th of December 1847, by which Sir Compton Domvile demised to one Henry Little-wood the lands in question. This lease contained a covenant by the lessee that he would not alien, assign, or sublet the demised premises, or any part thereof, without the assent of the lessor. Henry Littlewood, on the 16th of September 1850, by deed of that date, executed with the assent of the reversioner, assigned the lease to George Fowler the owner in this matter. The reverÂsion became vested in Sir Charles Domvile the appellant. George Fowler the assignee deposited the lease with one J. Hinds, by way of mortgage, to secure £1000. Mr. Hinds applied to the Landed Estates Court for a sale of the leasehold lands to satisfy his equitable mortgage, and an order for sale was made. Sir Charles Domvile applied that the proceedings for a sale should be stayed. This application was refused, and from this order the present appeal was brought. Mr. Brewster and Mr. Warren (with them Mr. W. O'C. Morris), for the appeal. The provisions of the lease are pointed to prevent all alienation ; Argument. it would be to render them a complete nullity if, through the medium of the Landed Estates Court, such alienation could be effected. Every covenant must receive such construction as will make it effectual if possible. Although there was a bona fide equitable mortgage, it may have been effected with the intention of making 20 CHANCERY REPORTS. an application to the Landed Estates Court, which would be a clear contravention of the covenant : Doe d. Mitehenson v. CarÂter (a); Avison v. Holmes (b). It cannot be doubted that the deposit was a purely voluntary act, and therefore all its natural consequences must be held to be also voluntary. This reasoning would apply, even if we had not the Sub-letting Acts in this country, but the effect of them is to give every possible effect to a covenant against alienation : Troy v...