O'Fay v Burke

• Jurisdiction: Ireland
• Judgment Date: 03 November 1858
• Date: 03 November 1858
• Court: Rolls Court (Ireland)

Rolls.

O'FAY

and

BURKE.

Hill v. PritchardENR 1 Kay. 394.

Edwards v. SlaterENR Hardr. 410.

Pilling v. Armitage 12 Ves. 78.

Dann v. SpurrierENR 7 Ves. 230; S. C., 3 Bos. & Pul. 393.

Earl of Jersey v. DeaneENR 5 B. & Al. 569.

Bichley v. Guest 1 Russ. & Myl. 440.

West v. Berney 1 Russ. & Myl. 431.

Shannon v. Bradstreet 1 Sch. &Lef. 52.

Morgan v. Milman 3 De G., M'N. &G. 33.

Shannon v. Bradstreet 1 Sch. &Lef. 72.

Blair v. SuttonENR 3 Mer. 237.

Dann v. Spurrier 7 Ves. 235-6.

Pilling v. Armitage 12 Ves. 78.

Shannon v. Bradstreet 1 Sch. & Lef. 73.

Stiles v. CooperENR 3 Atk. 692.

Collen v. GardnerENR 21 Beavan, 540.

Ridgeway v. Wharton 6 H. L. Cas. 238.

CHANCERY REPORTS. 225 1858. Rolls. O'FAY v. BURKE. (In the Rolls.) July 9. Nov. 3. Tan petition was filed for the specific performance of an agreement for a lease, for the petitioner's life, of the lands of Roo in the county of Galway, and for an injunction to restrain the respondent from issuing execution in an action of ejectment for the recovery of the lands. The agreement was contained in a written proposal by the petitioner, in February or March 1849, which was lost, and in a letter of the 26th of March 1849, written by the petitioner's father, James Hardiman Burke, who died in January 1854. In addition to the proposal and letter, the petitioner relied on the fact that with the knowledge and acquiescence of the respondent he had expended upwards of £500 on permanent improvements on the lands. The defences set up by the respondent were, first, that James HardiÂman Burke had power to make a lease for his own life only, as a power of leasing which he had, under a settlement of the 28th of October 1815, bad been extinguished by a disentailing deed executed on the 13th of September 1843. Secondly, that the letter of the 26th of March 1849 was not a sufficient agreement within the Statute of Frauds. Thirdly, that the respondent was not aware of the letter until the ejectment was brought, and that he was A written proposal was sent to a tenant for life, for a lease for three lives or thirty-one years, at a rent. He replied that he had not power to execute such a lease, but " If you choose to take the lease in the usual way, I will allow you £20 to get up a cottage, and a lease for your own life."-Held, that as the answer was not a simple acceptance, but introduced new terms, the proposal and answer were not a sufficient agreement within the Statute of Frauds. A tenant entered into a contract for a lease with a tenant for life, which was not binding on the remainderman. He entered into possession, and after the death of the tenant for life, having sent a copy of the contract to the land agent of the remainderman, he expended a large sum on the lands, which the remainderman knew, or had an opportunity of knowing, though he denied, and it did not appear, that the contract was directly communicated to him.-Held, that the notice of the contract to the land agent did not affect the remainderman, so as to give the tenant an equity against him, by reason of his acquiescence in the expenditure. vox.. 8. 29 226 CHANCERY REPORTS. ignorant of the expenditure by the petitioner. Fourthly, that the farm contained 32a. lr. 24p.; and that the petitioner, since his occupation of it, had paid rent for only 30 acres. The statements in the petition and affidavits filed in the matter are fully stated in the judgment. Witnesses were examined orally before the Court. The petitioner's evidence was as follows :-He was a Roman Catholic clergyman ; he had resided on the lands of Roo since 1849 ; the lands had been previously to that occupied by a Mrs. Magrath, who had run away and left the lands in a very bad state. James Hardiman Burke wished that he should become the tenant, as the parish priest had always been a tenant of his. The petitioner said to him that he would be very glad to become his tenant, but that the house and place were in a ruinous state, and he could not live there without making some kind of a house fit to live in ; and James H. Burke said he would be glad to help the petitioner in that, and to put in his proposal, which was to pay £1. 5s. an acre for the holding, provided he got assistance to build a house. The lease, to the best of his belief, was to be for three lives and thirty-one years. A person of the name of Fahey saw the proposal. The letter of the 26th of March 1849 was an answer to that proposal. He put his stock on the farm after sending in the proposal, and proceeded to lay out money on the cottage, on the strength of the lease. He never got the £20, or asked for it ; but when he went to pay the rent, James H. Burke said to him it would be time enough for that. He never surveyed the farm, but conÂtinued to pay the rent to James H. Burke during his life. After the respondent's return in 1856, he laid out money in improveÂments which he bad commenced in 1855. He laid out altogether £543. 2s. 4d. The respondent saw the people at work from time to time, and came one day and said that he was the only improving tenant on the estate, and that no tenant on the estate was as fond of improving as he was. Thomas Fahey proved that he saw the petitioner write a proposal for a lease, which he read over to him, and that he heard James H. Burke say he would give him a lease for the petitioner's life. That the improvements made by the petitioner could be seen from CHANCERY REPORTS. 227 the respondent's lands. That the house was, at most, a quarter of a mile from the public road, and about two or three miles from the respondent's residence. Michael Coy proved that he worked at the petitioner's house, and that while he was at work he saw the respondent on his own lands and on the road ; that he was only about 150 yards off, and must have seen the building going on, unless he closed his eyes. Mr. Blake, Mr. Lawson and Mr. Morris, for the petitioner. Mr. Fitzgibbon and Mr. Sidney, for the respondent John H. Burke. 1858. Rolls. &FAY v. BURKE. Statement. Argument. On the question of the extinguishment of the power, Hill v. Pritchard (a), Burton's Comp., pp. 53, 54, Edwards v. Slater (b), Tudor's L. Cas., p. 277 and notes, were relied on. As to the exÂpenditure by the petitioner Pilling v. Armitage (c); Dann v. Spurrier (d). The MASTER OF THE ROLLS. Nov. 3. The petition in this case has been filed by the petitioner for the Judgment. specific performance of an agreement for a lease, which agreement is contained in a certain proposal made by the petitioner to the late James Hardiman Burke, and a letter of the said James HardiÂman Burke, in the petition mentioned ; and for an injunction to restrain the respondent John H. Burke from issuing execution in the action of ejectment brought by him against the petitioner. The petitioner is the Roman Catholic priest of Roo in the county of of Galway. The petition states that in, and for many years prior to, the year 1849, James Hardiman Burke, now deceased, was seised, under and by virtue of an indenture dated the 28th of October 1815, of an estate for life, of and in that part of the lands of Roo now in the possession of the petitioner, and containing about thirty acres, late Irish plantation measure. That the said indenture of the 28th of October 1815 contained a leasing power enabling the said James (a) 1 Kay. 394. (b) Hardr. 410. (c) 12 Ves. 78. (d) 7 Ves. 230; S. C., 3 Bos. & 393. -228 CHANCERY REPORTS. Hardiman Burke during his lifetime to demise the said lands.for any term not exceeding one life or twenty-one years, at the best improved rent. That one James Daly and one William Gregory were nomiÂnated the trustees of the said indenture, and that the legal freehold estate was, by the operation of said indenture, vested in the said trustees, their heirs and assigns. This is denied by the respondent, but it does not appear material whether the legal estate was or was not in the trustees. The petition further states that the said two trustees are dead, and that the said William Gregory was the survivor of them, and that the respondent William H. Gregory is the eldest son and heirÂat-law of such survivor. That the said James Hardiman Burke being so seised and empowered as aforesaid, he, sometime in or about the month of February or March 1849, suggested to the petitioner to become the tenant of the said lands of Roo, and expressed himself to the petitioner to the effect that as the former parish priest of the parish had lived on said lands, and been the tenant thereof, and as the premises were then vacant, he the said James H. Burke was desirous that the petitioner should become the tenant thereof. That previously to the time of such negociation, the said premises had been held and occupied by Mrs. Magrath, at the annual rent of £34. 10s. 22d. or thereabouts, and that there was a small dwelling-house or cottage thereon, and some small out buildings in the nature of offices. That the said Mrs. Magrath permitted the cottage and offices to run greatly out of repair, and she also wasted the land, or permitted same to be wasted by an injurious or mischievous mode of cultivation and management thereof, and that at the time of said negociation the said premises were in a very deteriorated state. That, yielding to the suggestion of the said James Hardiman Burke, the petitioner did, sometime in or about the month of February or March 1849, send in to the said James Hardiman Burke a written proposal signed by the petitioner, and in the form of a letter addressed to said James H. Burke, offering to take the said lands of Roo as previously held by Mrs. Magrath, at a rent of £1. 5s. per acre, late Irish plantation measure, for a term of three lives and thirty-one years after, and claiming CHANCERY REPORTS. 229 an allowance towards the improvements which the petitioner pro- 1858. posed to make to said cottage and offices. That the said James Rolls. Hardiman Burke was perfectly willing to accept such proposal...