Leathem v Allen

• Jurisdiction: Ireland
• Judgment Date: 04 December 1850
• Date: 04 December 1850
• Court: High Court of Chancery (Ireland)

Chancery.

LEATHEM

and

ALLEN.

Wood v. machuENR 5 Hare, 158.

Freme v. WrightUNK 4 Mad. 364.

Wilmot v. WilkinsonENR 6 B. & C. 506.

Baxter v. ConollyENR 1 Jac. & W. 576.

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

Mortlock v. Buller 10 Ves. 306; 13 Ves. 77.

Spunner v. WalshUNK 10 Ir. Eq. Rep. 386; S. C. 11 Ibid, 597.

Vaughan v. MagillUNK 12 Ir. Eq. Rep. 200; S. C. on appeal, Ibid, 207.

Daniels v. Davison 16 Ves. 249.

Coppin v. Fernyhough 2 Bro. C. C. C. 291.

Hamilton v. Royse 2 Sch. & Lef. 315.

Clive v. BeaumontUNKENR 1 De. G. & S. 397, et vide Gaston v. Frankum, 13 Jur. 739; 2 De G. & S. 561.

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

Shepherd v. KeatleyENR 1 Cr. M. & R. 117; S. C. 4 Tyr. 571.

Mason v. CorderUNK 2 Marsh. 332.

Hall v. BettyUNK 4 M.& Gr. 610; S. C. 5 Scott, N. R. 516.

Souter v. DrakeENR 5 B. & Ad. 992.

Fildes v. hooker 3 Mar. 193; Sug. V. & P. 11th ed. 563.

Blake v. PhinnENR 3 C. B. 976.

Sellick v. Trevor 11 Mee. & W. 722.

Taylor v. MartindaleENR 1 Y. & C., C. C. 658.

Warren v. RichardsonENR Younge, 1.

Wilmot v. WilkinsonENR 6 B. & C. 506, 511.

Freme v. WrightUNK 4 Mad. 364.

Baxter v. ConollyENR 1 Jac. & W. 576.

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

Spratt v. JefferyENR 10 B. & C. 249; S. C. 5 Man. & Ry. 188.

Duke v. Barnett 2 Coll. R. 337, 341.

Treatise on Vendors 11th ed. p. 392.

Seaton v. Mapp 2 Coll. R. 556, 562.

Taylor v. MartindaleENR 1 Y. & C., C. C. 658.

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

CHANCERY REPORTS. 683 1850. Chancery. LEATHEM v. ALLEN. SPECIFIC PERFORMANCE.-By indenture of the 29th September 1837, between the Governor and Assistants, London, of the New PlantaÂÂtion in Ulster, within the realm of Ireland, of one part, and Conolly M'Causland Lecky of the other part (purporting to be made in consideration of the surrender of a similar indenture of lease of the 23rd of June 1820, of the premises hereinafter mentioned, made between the same parties, for three lives and the term of twenty-eight years), the Governor and Assistants, London, of the New Plantation in Ulster demised, amongst others, certain premises in Ship-quay street in the City of Londonderry, to Conolly M'CausÂÂland Lecky, for the lives of three persons therein specified, and the survivor of them, and if they should happen to die before the expiration of twenty-eight years from the date thereof, then for the residue of that term of twenty-eight years which should be to come and unexpired at the death of the survivor, at the yearly rent therein reserved, with a covenant by the lessors, with Conolly M'Causland Lecky, his heirs, executors, administrators and assigns, that immediately after the expiration of twenty-one years to comÂÂmence from the date thereof, or, in case all the lives should die within twenty-one years, then within six months after the death of the survivor, the lessors should at the request of C. M. Lecky, his heirs, executors, administrators and assigns, and on the surrender of this lease, make out and grant to C. M. Lecky, his heirs, exeÂÂcutors, administrators and assigns, or such other person as he or they should appoint, a new lease of all and singular the premises demised by the above mentioned lease of the 23rd June 1820, for the natural lives of such three persons as C. M. Lecky, his Where there is an agreement by a vendor, having a derivative estate in lands, to let them for a term of years, and such an agreement, if carried into execution, would operate, not as a lease, but as an assignment of the vendor's estate:-Quare, whether specific performance of the agreement will be decreed against the vendee ? 684 CHANCERY REPORTS. heirs, executors, administrators or assigns, should nominate, and for a term of twenty-eight years concurrent with such three new lives, at the same rent, and which lease should contain all the coveÂÂnants and conditions in the indenture of the 23rd June 1820 exÂÂpressed, as well on the part of the lessors and their assigns as on the part of the lessee or lessees in such new lease to be named, his or their heirs, executors, administrators or assigns. And it was by this indenture provided, agreed and declared, that the true intent and meaning thereof, and of the parties thereto, was that the term and estate thereby granted or intended to be granted and agreed to be renewed, should in the manner and upon the terms and condiÂÂtions in this indenture specified, and not otherwise, be renewable for ever. The plaintiff's charge having stated the above lease of the 29th of September 1837, alleged that the ceux qui vivent in that lease were still living. It also stated that Conolly ITCausland Lecky, being seised of the premises under the lease of 1820 (recited in the lease of 1837), demised them to Francis Horner by indenture of the 2nd of OctoÂÂber 1826, for two lives, and for so many years of the term of twenty-eight years as was then unexpired. By indenture of the 16th of April 1828, Francis Horner assigned his interest in the premises to Samuel Scott, who, by indenture of the 7th of July 1843, assigned them to the plaintiff William Leathem ; and the charge averred that he was seised of them in trust for himself and his co-plaintiff Thomas Wallace, for the residue of the term of twenty-eight years, the two lives having expired ; and that Conolly M'Causland Lecky had, by letter of agreement of the 27th of October 1847, agreed to grant to William Leathern, as such trustee, a new lease of the premises for the term of sixty-one years from the 1st of November 1847, if taken out immediately. Before the execution of the lease thus agreed to be granted to the plaintiffs, they entered with the defendant into the agreement conÂÂtained in the following letter and acceptance thereof:- " Londonderry, 29th October 1847. " DEAR Six-We propose to let to you for the term of sixty-one CHANCERY REPORTS. 685 years from the 1st of November proximo, the premises now occupied 1850. by us in Ship-quay-street, as held under Conolly Lecky, Esq., at Chincery. LEATHEM the yearly rent of 1.15 ; you to get possession on the 1st day of v. May next, and to be under rent from that date ; a lease to be taken ALLEN. out by you during the ensuing month. Statement. " John Allen, Esq." "WILLIAM LEATHEM AND Co. " I accept of the above.--JOHN ALLEN. " 29th of October 1847." Subsequently, by indenture of the 30th of November 1847, Conolly M`Causland Lecky demised the premises to the plaintiffs, to hold for...