John Kean and Wife, Administratrix of William Craig v James Strong and Others, Executors of John Maxwell

• Jurisdiction: Ireland
• Judgment Date: 18 November 1845
• Date: 18 November 1845
• Court: Queen's Bench Division (Ireland)

Queen's Bench.

JOHN KEAN and wife, Administratrix of WILLIAM CRAIG

and

JAMES STRONG and others, Executors of JOHN MAXWELL.

Kean v. Strong 5 Ir. Law Rep. 540.

Nind v. MarshallENR 1 Brod. & Bing. 319.

Howell v. RichardsENR 11 East. 644.

Stannard v. Forbes 1 Nev. & Perr. 633 ; S. C. 6 A. & E. 573.

Browning v. WrightENR 2 Bos. & Pul. 13.

Line v. StevensonENR 6 Scott. Rep. 447 ; S. C. 5 Bing. N. C. 183.

Trimlestown v. Kemmis 1 J. & S. 604.

Paul v. Nurse 8 B. & Cress. 486.

Webb v. RussellENR 3 T. R. 393.

Kean v. Strong 5 Ir. Law Rep. 540.

Broughton v. Conway Dyer, 240, a.

Trenchard v. Hoskins Wynch, 91.

Rich v. Rich Cro. Eliz. 43.

Milner v. Horton M'Clel. Rep. 647.

Smith v. ComptonENR 3 B. & Ad. 189.

Ford v Wilson 2 B. Moo. 592.

Barton v. FitzgeraldENR 15 East. 530.

Gainsford v. GriffithENR 1 Saund. 60.

Hesse v. StevensonENR 3 Bos. & Pul. 565.

Nokes's case 4 Co. 80.

Paradine v. Jane Allen's Rep. 27.

Beale v. ThompsonENR 3 Bos. & Pul. 420.

Williams v. Burrell 14 Law Jour., N. S. 98, C. P.

Sicklemore v. Thistleton 6 Maule & Sel. 9.

Brown v. BrownENRENR 1 Lev. 57 ; S. C. 1 Keb. 234.

Merrill v. FrameENR 4 Taunt. 329.

Deering v. FarringtonENR 1 Mod. 113.

expressio facit cessare tacitumENR 4 Taunt. 330.

5 Bing. A. C. 183.

74 CASES AT LAW. M. T. 1845. Queen'sBench. JOHN KEAN and Wife, Administratrix of WILLIAM CRAIG, v. JAMES STRONG and others, Executors of JOHN MAXWELL. COVENANT, tried before Torrens, J., at the Spring Assizes of 1845, for the county of Armagh. The plaintiffs, as representing the assignee of the lessee of a lease for a term of years granted by one John Maxwell, whom the defendants represented, brought their action for a breach of a covenant for renewal. The declaration contained four counts setting forth the lease, a covenant for renewal contained therein and the breach thereof; the defendants pleaded non est factum to the several indentures set out in the counts, and plene administravit. Special pleas were also added, on which issues at law had been raised and decided in Kean v. Strong (a). The plaintiffs at the trial proved a lease bearing date 1st of November 1800, whereby John Maxwell, for the considerations therein mentioned, demised to Joseph Craig, his executors, adminisÂÂtrators and assigns, the premises therein described (excepting mines, royalties, &c.), for twenty years, at a certain rent. This lease contained, amongst others, the following covenant, as stated in all the counts of the declaration :-" And the said John Maxwell does " for himself, his executors, administrators and assigns, covenant, " promise and agree to and with the said Joseph Craig, his " executors, administrators and assigns, that at the expiration of " the present demise granted, he or they shall renew the present " lease, or any future lease which shall be granted of the premises, " by adding thereto such number of years as in this present demise, " viz., the term and space of twenty years, and so on, at the end " or expiration of every term, he the said John Maxwell, his "executors, administrators and assigns, shall and will make out a "new lease or renew the present, or any future lease which shall "be granted of the premises, for the term and space of twenty years, " and so on to be continued." Then after some others there was this Held also (Per CRAMPTON), that the unqualified covenant to renew was not qualified by a covenant for quiet enjoyment, the covenants not being connected with each other. (a) 5 Ir. Law Rep. 540. further covenant :-" And the said John Maxwell does covenant, M. T. 1845. " promise and agree to and with the said Joseph Craig, his executors, Quee7e8Beneh' "administrators and assigns, that he and they, paying the hereby KEAN "reserved rent, and performing the conditions hereinbefore mentioned v. " and expressed, shall and may quietly and peaceably hold, occupy STRONG. " and enjoy the hereby granted premises, with their and every of "their appurtenances (except as before excepted), without the let, " hindrance or molestation of him the said John Maxwell, or any " other person deriving by, from or under him." The plaintiffs proved their title as representatives of the assignee of Joseph Craig, and the annual value of the lands contained in the lease. Also a tender of a renewal to the defendants, and a demand made on them on behalf of the plaintiff to execute it, and that they expressed their willingness and offered to execute same, but stating that it would be of no service to the plaintiffs inasmuch as they, the defendants,. had been evicted out of the premises by a judgment in ejectment brought by the owner in fee of the premises. The plaintiffs having closed their case, Counsel for the defendÂÂants called upon the Judge to direct the jury, that according to the true construction of the lease of 1st of November 1800, and especially of the covenants for renewal and quiet enjoyment therein contained, the lessor did only covenant against any interÂÂruption of the enjoyment thereunder, or eviction of the interest thereby granted, which should be occasioned by himself, or any person or persons claiming under him, and not against an eviction by any person claiming under a title paramount to that of John Maxwell ; and that insomuch as the interest of the lessor, as well as lessee, was evicted by Maxwell Close, by virtue of a title paramount to that of the lessor, he should direct the jury to find a verdict for the defendants. But he refused so to direct the jury, and on the contrary told them, that if they believed the evidence, the refusal to grant the renewal in consequence of the eviction was a breach of the covenant, and that the defendants. were answerable to the plaintiffs in substantial damages for the consequences thereof, and their inability thereby occasioned to make a renewal which would be valid as against the eviction. This formed the ground of the first exception. The defendants' Counsel further insisted that the lease did not contain an unqualified covenant for title against all persons on the part of John Maxwell, as averred in the third count of the declaÂÂration, or an unqualified and absolute covenant for title to make a renewal which would be effectual against persons claiming by 76 CASES AT LAW. M. T. 1845. title paramount to that of Maxwell, or of his executors, or as Qum.'''13e4eh" against 'not the title of Maxwell Close. And they required the Judge -al LEAN to direct the jury to find for the defendant upon the issue of non V. est factum, so far as related to the third count ; but he refused ETLONVr. so to do, and directed the jury that the lease did contain an unqualified covenant for title, on the part of John Maxwell, against all persons whomsoever ; and that if they believed the evidence, they should find a vedict for the plaintiffs upon the issue joined on the third count; and generally should find a verdict for the plaintiffs for substantial damages for the loss of the interest, the value of which should be computed as under the lease, supposing the same to contain an unqualified covenant for renewal thereof, and title to renew the same, as against all persons, whether claiming by paramount title or otherwise. This formed the ground of the second exception. The jury found for the plaintiffs with subÂÂstantial damages. Ormsby, with whom was Holmes, for the exceptions. The lease in question does not contain any covenant for title ; it has a qualified covenant for quiet enjoyment; and in construing the lease, the whole instrument must be looked at, and the intention of the parties regarded : 1 Wms...