James Brangan, Christopher Brangan and James Smith, v Hamilton Gorges and Matthew Smith

• Jurisdiction: Ireland
• Judgment Date: 23 January 1845
• Date: 23 January 1845
• Court: Rolls Court (Ireland)

Rolls.

JAMES BRANGAN, CHRISTOPHER BRANGAN and JAMES SMITH,

and

HAMILTON GORGES and MATTHEW SMITH.

Barkley v. RayENR 2 Hare, 309.

Adams v. Painter 8 Jurist, 1063.

Edwards v. Edwards 1 Jac. & R. 335.

Baker v. HarwoodENR 7 sim. 373.

Walburn v. Ingleby 1 M. & K. 61.

Norbury v. MeadeENR 3 Bligh, P. C. 233.

Anderson v. Wallis 6 Jurist, 906.

Cuthbert v. CreasyUNK 6 Mad. 189.

Kaye v. Marshall 1 M. & Cr. 382.

Baring v. NashENR 1 V. & B. 552.

Balls v. MargraveENR 3 Beav. 288.

Plumbe v. Plumbe 4 Yo. & Coll. 345.

Frietas v. Dos Santos 1 Y. & Jer. 574.

Cholmondeley v. Clinton 1 Turn. & Russ. 116.

The King of Spain v. MachadoENR 4 Russ. 225.

Foss v. HardbottleENR 2 Hare, 503.

Wartnaby v. WartnabyENR 1 Jac. 377.

Blake v. SmithENR 1 You. 594.

Revell v. HusseyUNK 2 B. & B. 280.

Vernon v. Vernon 2 M. & C. 168.

Burney v. Meade 2 Ridgw. P. C. 323, 405.

Ambury v. Jones 1 Young, 199.

Baker v. HarwoodENR 7 Sim. 373.

Cholmondeley v. ClintonENR 2 V. & B. 115.

Baker v. BookerENR 6 Price, 379.

Warmald v. De LisleENR 3 Beav. 18.

Hammond v. MessengerENR 9 Sim. 335.

Darthey v. ClementsENR 6 Beav. 169.

Laird v. TobinUNK 1 Mol. 543.

Houghton v. ReynoldsENR 2 Hare, 264.

Lennon v. Palmer 5 Ir. Law Rep. 100.

Taylor v. Stibbert 2 Ves. jun. 437.

Lewis v. Swift 1 Jones, 430.

Stroughton v. CrosbieUNK 5 Ir. Eq. Rep. 451.

Gray v. KnoxUNK 5 Ir. Eq. Rep. 465.

Beere v. CavendishUNK 5 Ir. Eq. Rep. 473.

Steele v. MitchellUNK 3 Ir. Eq. Rep. 1.

Garnett v. ArmstrongUNK 5 Ir. Eq. Rep. 533.

Vernon v. VernonENR 2 My. & Cr. 145.

Frietas v. Dos Santos 1 Y. & Jer. 574.

Walburn v. Ingleby 1 My. & Kee. 61.

Kaye v. MarshallENR 1 My. & Cr. 373.

Baker v. BookerENR 6 Price, 379.

Laird v. TobinUNK 1 Mol. 543.

Vernon v. VernonENR 2 My. & Cr. 145.

Walburn v. Ingleby 1 My. & Kee. 61.

Baker v. HarwoodENR 7 Sim. 373.

Sayer v. wagstaff 2 Y. & C. C. R. 230.

Ball v. MargrveENR 3 Beav. 284.

Baring v. NashENR 1 Ves. & Bea. 553.

Baker v. HarwoodENR 7 Sim. 375.

Balls v. MargraveENR 3 Beav. 284.

Haughton v. ReynoldsENR 2 Hare, 264.

CASES IN EQUITY. 283 1845. Rolls. JAMES BRANGAN, CHRISTOPHER BRANGAN and JAMES SMITH, v. HAMILTON GORGES and MATTHEW SMITH.* 4 Jan. 23. THIS was a demurrer to the bill by the defendant Gorges. Plaintiffs by The bill stated, that on the 22nd of August 1800, Hamilton Gorges their bill, filed to establish a the second, by indenture demised and released to James Wilson, and to lease, alleged that his heirs, executors, administrators and assigns, part of the lands of p the one plaintiffs of th Primatestown, containing 228 acres ; habendum from the 1st day of claimed under one of several November then next, for the three lives therein named,and sixty-one years lessees, not therefrom, subject to a yearly rent, which was the highest and best rent stating which, " that all the that could then have been obtained : that the lands having subsequently legal and table equi- increased in value, on the 22nd of October 1814, James Wilson, in con- and interest of sideration of the sum of £3241. 12s. 6d., assigned all his interest to J. W., the inal Daniel Haunil, who was uncle to the plaintiff James Brangan, and pur- by mesne as lessee, chased the lands for the purpose of a provision for James Brangan and signments or otherwise,duly his sisters, under one of whom the plaintiff James Smith claimed ; and came to and was vested n that Hamil immediately put James Brangan into possession of 160 acres, the plain i tiffs and Mary Brangan, otherwise Osborne, in possession of 17 acres ; and and one M.C." (who was not upon the death of Hamil intestate, in 1816, James Brangan and Osborne a party to the and wife continued in possession and paid their proportions of the rent. suit), " and that they were That previous to 1835 James Brangan, " who is a person of weak equitably en- titled to the mind and at times utterly incapacitated for the transaction of business, portions of the became afflicted with mental derangement, whereby he was for a con- lands in their possession re- siderable time incapacitated from properly managing his affairs." spectively." That in 1836 James Brangan and the other occupiers of the lands Held, on de murrer ; first, were served with ejectments on the demises of Hamilton Gorges the that the title second, and the defendant Hamilton Gorges the third ; and that one of the plaintiffs was not stated Matthew Collier procured James Brangan, in consideration (as he alleges) with sufficient of £384 advanced for the arrest of rent, to make some conveyance to certainty, the rule of law and him, and that Collier in fact got possession of 90 acres of James Brangan's equity being the same, that the plaintiff must allege his own title particularly; secondly, that in a suit to establish the lease, all the tenants should be before the Court ; and that there was not, therefore, a sufficient privity established between the plaintiffs and defendant. Tenant for life made a lease exceeding his power, with a covenant for quiet enjoyment for himself and those claiming under him; and he and the remainderman subsequently conveyed the estate in fee subject to the tenants' leases ; Held, that this did not amount to a confirmation of the lease by the remainderman, there being to contract between him and the tenants, nor any stipulation between the tenant for life and remainderman, that the latter should not impeach the lease. QuaTe.-Is the insanity of the plaintiff, at the time of the filing of the bill in his name, but without his authority, a) ailable on demurrer ? • See ante, pp. 221, 225. 37 284 CASES IN EQUITY. land, which was in the occupation of undertenants; and that it appeared to have been part of the arrangement, that Collier was to continue the undertenants at the rents then payable by them; and that James Brangan was to hold 71 acres of which he remained in possession as tenant to Collier, but paying no more rent than a proportionate share of the head rent : that H. Gorges the second died in 1838, and that thereupon H. Gorges the third became entitled to the reversion, subject to the said lease, as his heir-at law. That the defendant Gorges, in April 1843, caused a notice to quit, addressed to Collier and his undertenants, to be served on the occupying tenants of the lands, requiring possession on the 1st of November then next ; and in Michaelmas Term brought his ejectment in the Exchequer, for the lands comprised in the lease of 1800. That Christopher Brangan took defence for the portion in the possesÂsion of him or his father ; alleging as the reason, the occasional mental incapacity of his father ; and James Smith took defence for the portion in his possession ; that M. Collier being in collusion, did not take defence, but allowed judgment by default ; that the Counsel for Gorges, in stating ,the plaintiff's case, alleged that Hamilton Gorges the second, the lessor in the lease of 1800, was, under the provision of a marriage settleÂment of 1797, only tenant for life, with remainder to his first and other sons in tail male, with power to lease the said lands of Primatestown for any term consistent with the tenure by which the same were held under the Lord Primate-which, by license granted to Hamilton Gorges the second, was for any term of lives or years not exceeding forty-one years,-and on that ground disputed the validity of the lease ; as also on the ground that the rent thereby reserved was not the best that could have been had for said lands when the lease was made. That the Jury found a verdict for the lessors of the plaintiffs in the ejectment, subject to objections taken by defendants' Counsel, on which they obtained in the following Easter Term a conditional order to set aside the verdict, upon certain terms; and that upon the debate of the motion, the Counsel for Gorges contended that the lease was invalid, as exceeding the power, and as being a lease of freehold to commence in future, while the Counsel for the plaintiffs in this cause insisted that being a copyhold tenure, such objections did not apply ; and the Court of Exchequer ordered the verÂdict to be set aside upon terms. The bill then stated, that the plaintiffs made ineffectual endeavours to get inspection of the books and records of the manor ; and that they believe and charge that the lease was a good and valid lease according to the custom of the manor, but that they could not be prepared with a full and satisfactory evidence of the custom at the then next Assizes. The bill then stated, that it was material for the plaintiffs to obtain a discovery upon oath from the defendant Gorges, of the documents and evidence in his possession and power, proving, the existence of the said CASES IN EQUITY. 285 custom, and that the said defendant had in his possession or power docuÂments and evidence which would assist in proving the said custom. The bill also stated, that the lease of 1800 contained a covenant for quiet enjoyment by Hamilton Gorges the second ; and that by indenÂture of 21st October 1830, he and the defendant conveyed the said lands of Primatestown, subject to the the tenants' leases, to trustees to secure an annuity to the defendant ; and that before the year 1835, by an indenture or indentures of settlement, or other conveyance, the date or names of the parties to which plaintiffs were unable to ascertain, the said lands were conveyed by H. Gorges the second to his son the defendant, to make a provision on his marriage, or for some other object, subject to the lease of 1800 ; and submitted, that inasmuch as the said H. Gorges the second, his heirs, executors, administrators and assigns were liable upon his said covenant for quiet enjoyment, to indemnify plaintiff's as assignees of the said James Wilson, in case of the avoidance of the said lease by the defendant H. Gorges ; and inasmuch as the said defendant was bound by his acceptance of the said rent-charge, and the said...