Hussey v Domvile

• Jurisdiction: Ireland
• Judgment Date: 27 February 1900
• Date: 27 February 1900
• Court: Court of Appeal (Ireland)

HUSSEY

and

DOMVILE.

Chancery Division

Appeal.

Landlord and tenant — Lease — Covenant by landlord to renew within a limited period on tenant nominating new life within a specified time — Time the essence of the contract —— Distinction between relief given by equity in case of neglect to renew where the covenant to renew is perpetual and where it is temporary — Tenant for life of reversion accepting a fine from the lessee nominating a new life after the specified period had expired — How far binding on the inheritance.

Alder v. Ward 2 Jon. & L. at p. 597.

Allen v. Hilton 1 Fonbl. Treat. Eq. 432, n.

Austen v. Cavendish Lyne, 118, n.

Barrell v. SabineENR 1 Vern. 268.

Bastin v. BidwellELR 18 Ch. D. 238.

Bateman v. Murray 1 Ridg. P. C. 187.

Bayley v. Corporation of Leominster 1 Ves. 476.

Bayley v. Corporation of Leominster 3 Br. C. & C. 529.

Baynham v. Guy's Hospital 3 Ves. 295.

Becher v. DelacourUNK 11 L. R. Ir. 187.

Bond v. SlatorUNK 10 Ir. Ch. Rep. 472.

Bond v. SlatorUNK 10. Ir. Ch. Rep. 473.

Boyle v. Lysaght Vern. & Scri. 135.

Boyle v. Lysaght Vern. & Scri. at pp. 143-146.

Butler v. Portarlington 4 Ir. Eq. R. 1; Dr. & War. 20.

City of London v. Mitford 14 Ves. 58.

Davis v. Thomas 1 R. & M. 506.

Eaton v. Lyon 3 Ves. 689.

Eaton v. Lyon 3 Ves. 690.

Finch v. UnderwoodELR 2 Ch. D. 310.

Firman v. Lord Ormonde Beatty, 347.

Harriss v. BryantENR 4 Russ. 89.

In Butler v. Lord Portarlington 4 Ir. Eq. R. 1.

In re Cootes, Minors 7 Ir. Jurist, 234.

Job v. BanisterENR 2 K. & J. 374.

Job v. BanisterENR 2 K. & J. 374; and, on appeal, 5 W. R. 177.

Kane v. Hamilton 1 Ridg. P. C. 180.

Lennon v. Naper 2 Sch. & Lef. 682.

Lord Ranelagh v. MeltonENR 2 Dr. & Sm. 278.

M' Dermot v. Caldwell I. R. 10 Eq. 504.

M'Alpine v. Swift 1 Ba. & Beat. 285.

M'Dermott v. Caldwell I. R. 10 Eq. 372.

M'Dermott v. Caldwell I. R. 10 Eq. 504.

M'Dermott v. Caldwell I. R. 10 Eq. 534.

Murphy v. JacksonUNK 7 Ir. Ch. Rep. 189, 502.

Murphy v. JacksonUNK 7 Ir. Ch. Rep. 189.

Murray v. Bateman Lyne on Leases, App. Case, 9.

Nicholson v. SmithELR 22 Ch. D. 640.

Roberts v. WayneUNK 7 Ir. Ch. Rep. 551; 8 Ir. Ch.

Sperling v. Houghton, Lyne, App. Case 22, p. lxxxiv.

Williamson v. TuckyUNK 14 Ir. Ch. Rep. 407.

Wisdom v. The Corporation of DublinUNK 2 Ir. Ch. Rep. 306.

Appeal. tion between relief given by equity in case of neglect to renew where the 1900. covenant to renew is perpetual and where it is temporary—Tenant for life Feb. 8, 12, of reversion accepting a fine from the lessee nominating a new life after 27. the specified period had expired—How far binding on the inheritance. A lease for three lives contained a covenant by the lessor to renew the same by adding a new life on the death of any of the cestui que vies during a period of ninety years on the lessee nominating the life so to be added within six months from the death of cestui que vie in whose place the new life was to be inserted, and on paying a fine of five shillings. On the fall of one of the lives the lessee allowed more than six months to elapse before nomiÂnating a new life. The delay was not due to any unavoidable accident, excusable ignorance, fraud or surprise, but arose from mere neglect on the part of the lessee : Held, by the Court of Appeal (reversing the judgment of the Vice-ChanÂcellor), that in the case of such covenants time was of the essence of the contract, that the Tenantry Act did not apply to covenants to renew during a limited period, that there was no equity to relieve the lessee from his own neglect, and that therefore he could not compel the lessor to execute a renewal for the life so nominated. On the fall of another life in the same lease the lessee had nominated a new life after the period of six months had elapsed, the delay being due to the lessee's own neglect. Notice of this nomination was given to a person who was then equitable tenant for life of the reversion, no notice being given to the trustees in whom the legal estate was vested. The tenant for life accepted the nomination, and also the fine payable on the occasion:— Held, by the Court of Appeal (reversing the judgment of the Viee-ChanÂcellor), that the act of the tenant for life did not bind the inheritance, and that the new life was not validly nominated. Queere: Whether when a lease for lives contains a covenant by the lessor to renew on the dropping of each life successively, the lessor is bound to renew where more than one life has dropped, as to one of which the right to renew has been lost by lapse of time. ACTION claiming a declaration that the plaintiffs were entitled to a renewal of a certain indenture of lease dated the 1st August, 1900—V ox.. 2 L 418 THE IRISH REPORTS. [two.. V.-C. 1823, and made between Sir Compton Domvile, Bart., of the one 1899. part, and William Sherrard of the other part, of the lands of HUSSEY Kilbogget, in the county of Dublin, pursuant to the covenant Domvu.E. and provisions therein, and in an indenture dated the 29th March, 1842, made between the said Sir Compton Domvile of the first part, Compton Charles Domvile of the second part, and William Sherrard of the third part, contained; and that the deÂfendants should be ordered to execute such renewal to the plainÂtiffs for the lives nominated in a notice, dated the 31st January, 1898, or for such other lives as the Court shall think proper, the plaintiffs offering to pay to the defendants all sums due for fines and interest. The plaintiffs, M. F. Hussey and J. Sherrard, were the trustees. of a marriage settlement, whereby the lessee's interest in the lease was settled, and also an infant, James Ormsby Sherrard, who under the trusts of the settlement was absolutely entitled to the lands held under the lease. The defendants were Compton Edward Domvile and G. H. Major, the trustees of the will of Compton Charles Domvile, and also H. W. Domvile, the tenant. for life of the reversion of the lands comprised in the said lease under the trusts of the said will. By the lease of the 1st August, 1823, Sir Compton Domvile demised to William Sherrard the lands of Kilbogget, to hold the same unto the said William Sherrard, his heirs, and assigns, for the lives and life of His Royal Highness Adolphus Frederick, Duke of Cambridge, David Henry Sherrard, and William Nassau Sherrard, and of the survivors and survivor of them, and for and during the lives and life of all and every such other persons and person as by virtue of the covenant for renewal thereinafter conÂtained should from time to time successively be added thereto during the term of years in the said covenant mentioned, subject to the yearly rent of £405 of the then currency of Ireland, with one shilling in the pound for receiver's fees, and to the covenants by the lessee and conditions therein contained ; and the said Sir Compton Domvile thereby for himself, his heirs and assigns coveÂnanted with the said William Sherrard, his heirs and assigns, that upon the death of the aforesaid lives or life, or any of them, which. should first happen within the term of seventy years to be con3.– VOL. I.] CHANCERY DIVISION. 419 puted from the 1st May, 1823, and he, the said William Sherrard, v.-C. his heirs or assigns first paying unto the said Sir Compton Domvile, 1899. SSEY HU his heirs or assigns, the sum of five shillings, and upon the nomi- v. nation of the life of any other person within six months next after D _ 011YILE. the death of such person or persons as aforesaid, by the said William Sherrard, his heirs or assigns, at his or their own request, to be put and inserted in the place and stead of the person so happening to die as aforesaid, which life so added and inserted was to be endorsed on the said lease, or to be written in a deed, label, or parchment to be affixed to the:said lease, or in a separate deed or writing, declaring the life so failing, and the life so to be added in lieu thereof, and the three lives in being, during which the said estate should be then to continue, and in like manner from time to time successively thereafter—during the said term of seventy years, commencing as aforesaid—upon the failure of every other life in the said lease then nominated, and thereafter to be successively nominated as aforesaid, and upon the like nomination of any other life successively in lieu of every several life so failing as aforesaid, that then the said Sir Compton Domvile, his heirs and assigns, upon the demand of the said William Sherrard, his heirs and assigns, upon the like payment of five shillings for the fall of every such life at the time of such demand to be made as aforesaid, would successively thereafter, during the term aforesaid, add and insert to the term of the said lease the several life or lives of the several person or persons so successively nominated in place of the several person or persons so successively happening to die as aforesaid, which several lives so to be added should be endorsed on the said lease, or written in the manner therein mentioned. By an indenture dated the 29th March, 1842, and made between Sir Compton Domvile of the first part, Compton Charles Domvile of the second part, and the said William Sherrard of the third part, the said Sir Compton Domvile, and Compton Charles Domvile covenanted with the said William Sherrard that the inÂterest of the said William Sherrard in the said lands under the said lease should be, and was thereby, extended, by making the said term of seventy years, during which the said lease should be renewable, commence as from the 29th March, 1842. 2 L 2 420 THE IRISH REPORTS. [1900- r-c. By an indenture dated the 2nd January, 1852, and expressed 1899. to be made between the said Sir Compton Domvile of the first part, HUSSEY the said Compton Charles Domvile of the second part, and Maria v. DONVILE. Sherrard (in whom the interest of the lessee under the said lease was then vested as tenant for her life) of...