Fennelly and Others v Anderson

• Jurisdiction: Ireland
• Judgment Date: 13 November 1851
• Date: 13 November 1851
• Court: High Court of Chancery (Ireland)

Chancery.

FENNELLY and others

and

ANDERSON.

Flight v. BollandENR 4 Russ. 298.

Howell v. GeorgeUNK 1 Mad. 1.

Armiger v. ClarkeENR Bunbury, 111.

Emery v. Wase 8 Ves. 505; S. C. 5 Ves. 846.

Davis v. JonesUNK 1 New Rep. 267.

Martin v. MitchellENR 2 Jac. & W. 425.

Leathem v. Allen Supra, p. 683.

Anderson v. HigginsENR 1 Jones & Lat. 718.

Shepherd v. KeatleyENR 1 Cr. M. & R. 117.

Salisbury v. HatcherENR 2 Y. & C., C. C. 54.

Innes v. Jackson 16 Ves. 366. 367.

Morris v. Stephenson 7 Ves. 474.

Hall v. HardyENR 3 P. Wms. 187.

Barrington v. Horn 2 Eq. Cas. Ab. 17, pl. 7l 5 Vin. Ab. 547.

Harris v. mott 15 Jurist, 978.

Eyston v. SimondsENR 1 Y. & C., C. C. 608.

Dowling v. Maguire Ll. & G. temp. Plunk. 1.

Freme v. WrightUNK 4 Mad. 364.

Spratt v. JefferyENR 10 B. & C. 249.

Molloy v. SterneUNK 1 Dru. & Wal. 585.

Deverell v. Bolton 18 Ves. 505.

Hawkins v. The Eastern Counties Railway 15 Jurist, 979.

Clive v. BeaumontENR 1 De G. & Sm. 397.

Smith v. CapronENR 7 Hare, 185, 191.

Ogilvie v. FoljambeENR 3 Mer. 53.

Gaston v. FrankumENR 2 De G. & Sm.561.

Morley v. CookENR 2 Hare, 106.

Flight v. BollandENR 4 Russ. 298.

Salisbury v. HatcherENR 2 Y. & C., C. C. 54.

Daniel v. AdamsENR Ambler, 495, 497.

Anderson v. HigginsENR 1 Jo. & Lat. 718.

Leathem v. Allen Supra, 683.

Purvis v. RayerENR 9 Price, 488, 525.

Sellick v. TrevorENR 11 M. & W. 722, 729.

706 CHANCERY REPORTS. 1851: Chancery. FENNELLY and others v. ANDERSON. SPECIFIC PERFORMANCE.---By indenture of the 20th of December 1813, Patrick Lattin and Elizabeth his wife demised, at an annual rent of 113. 15s., to Thomas and James Quan, the lands of Mount Prospect, for three lives, and such other lives as should be afterwards inserted therein under a covenant by the lessors for perpetual reÂÂnewal (on payment of a nominal fine) contained in the lease. The lessees' interest having become vested in equal shares in the four female petitioners, in the month of October 1850, three of them being then married, and the fourth unmarried, by indenture, made between them and the husbands of the three who were married, of the one part, and the respondent Paul Anderson of the other part, reciting the lease of 1813, and that the lessees' interest had devolved upon the four female petitioners, and that they and the other parties of the first part had agreed with Anderson to convey to him all their interest in the lands for the sum of 1000, it was witnessed that the parties of the first part thereby covenanted and agreed with Anderson that they would forthwith, and at their own expense, make and deliver to him or his solicitor, on or before the 10th of NovemÂÂber then next, " an abstract of their title to the lessee' interest in said recited lease of the 20th day of December 1813, of said lands and premises," and would at their own expense " deduce a clear title thereto ; and also that they or their heirs" should and would, on or before the 1st of December then next, on receiving from Paul Anderson, his heirs, executors, administrators or assigns, the said sum of 1000, at his or their cost, by such conveyances and assurÂÂances in the law as he or they should reasonably require, " well and sufficiently grant, release, convey, or otherwise assure all and singular the said lands and premises, with the timber and other trees standing and growing thereon, and other the rights and appurÂÂtenances, unto and to the use of the said Paul Anderson, his heirs and assigns, or to whom he or they should direct and appoint, free CHANCERY REPORTS. 707 from all incumbrances, except the rent, renewal fines, covenants and agreements," reserved in the lease of 1813, and the tithe rentcharge, if any, payable out of the lands. Then followed a covenant by Paul Anderson for payment, on execution of such conveyance, of the 1000 purchase money. And the parties of the first part coveÂÂnanted "to allow the said Paul Anderson, his heirs, executors, administrators or assigns, out of the said sum of 1000 the sum of 15 as and for the costs and expenses of the said Paul Anderson, his heirs, &c., to be by him or them incurred in obtaining from the owner of the fee of the said lands a fee-farm grant thereof under the Act of the 12 & 13 Vic. c. 105." This indenture was signed, sealed and delivered by all the parties to it, and subsequently to its execution the fourth female ;petitioner married. Paul Anderson having declined to complete the contract, the four female petitioners and their respective husbands filed against him the present cause petition, in which they denied that he was entitled to proof of the title of the lessors in the lease of 1813, and insisted that even if he bad ever been so entitled, he had under circumÂÂstances which it is not necessary here to detail, waived any such right. The case now came on for hearing. Mr. F. Fitzgerald and Mr. Harris, for the defendants, took a preliminary objection, that a bill filed by husband and wife for specific performance of a contract entered into with respect to the wife's property, in consequence of the want of mutuality, could not be maintained, inasmuch as the other contracting party could not enforce the contract against the wife : Flight v. .Rolland (a) ; Howell v. George (b); Armiger v. Clarke (c) ; Emery v. Wase (d); Davis v. Jones (e) ; Martin v. Mitchell (f). And they insisted that if the...