Leonard v Taylor

• Jurisdiction: Ireland
• Judgment Date: 22 April 1873
• Date: 22 April 1873
• Court: Queen's Bench Division (Ireland)

Q. Bench.

LEONARD

and

TAYLOR.

Norman v. FosterENR 1 Mod. 101.

Gainsford v. GriffithENR 1 Saund. 58.

Howel v. Thomas RichardsENR 11 East, 633.

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

Tyrrell v. Clark 23 L. J. Ch. 283.

Thompson v. Thompson I. R. 6 Eq. 113.

Williams v. BurrellENR 1 C. B. 402.

Stranks v. St. JohnELR L. R. 2 C. P. 376.

Bandy v. CartrightENR 8 Ex. 913.

Rawson v. GroganUNKIR I. R. 3 C. L. 631.

Lord Ashton v. LarkeUNKIR I. R. 6 C. L. 270.

Reed v. Armstrong 7 Ir. Ch. R. 266.

Ogilvie v. FoljambeENR 3 Mer. 53.

Line v. StephensonENRENR 6 Sc. 447; S. C. 7 Sc. 69.

Merrill v. FrameENR 4 Taunt. 328.

Nokes' CaseUNK 4 Rep. 80, b. 482.

Deering v. FarringtonENR 1 Mod. 1113.

Stannard v Forbes 6 A. & E. 572.

Line v. StephensonENR 7 Sc. 69, Ex. Ch.

Bandy v. CartwrightENR 8 Ex. 913.

Tyrrell v. Clark 23 L. J. Ch. 283.

Salter v. Cavanagh 1 D. & Wal. 668.

Wodehouse v. FarebrotherENR 5 E. & B. 277.

Line v. StephensonENRENR 6 Sc. 447; S. C. 7 Sc. 69.

Line v. StephensonENR 7 Sc. 69.

Merrill v. FrameENR 4 Taunt. 328.

Fraser v. Skey 2 Chitty, 646.

Pomfret v. RicroftENR 1 Saund. 322, b, per Twisden, J.

Burnett v. LynchENR 5 B. & C. 589, per Littledale, J.

Swan v. Searles Dy. 257, b.

Adams v. GibneyENR 6 Bing. 656.

Moneypenny v. MoneypennyENR 9 H. L. C. 139.

Implied covenant for title — Express covenant for quiet enjoyment —

VOL. VII.] COMMON LAW SERIES. 207 LEONARD v. TAYLOR. Q. Bench. Implied covenant for title-Express covenant for quiet enjoyment-" Landlord 1872. and Tenant Act, 1860" (23 & 24 Vict. c. 154, s. 41). Nov. 25, 26. The covenant for title to be implied in a lease by section 41 of " The Land 1873. lord and Tenant Act, 1860" (1), is negatived by a limited express covenant for April 22. quiet enjoyment. Line v. Stephenson (7 Se. 69) applied and followed. DEMURRER to defences. The summons and plaint contained two counts, which were as follow (1) "That after the commencement of the Landlord and Tenant Amendment Act (Ireland) 1860, the Defendant by deed demised to the Plaintiff the lands of Ballingale, containing 90 acres, 3 roods, and 10 perches, or thereabouts, for the term of 99 years from the 25th day of March, 1868, and thereby covenanted with the Plaintiff that at the time of the making of the said demise the DefendÂant had full and lawful power and authority to demise the said lands to the Plaintiff for the said term as aforesaid. Yet the Defendant, at the time of the making of the said demise, had not full or lawful power or authority to demise said lands to the Plaintiff for the said term as aforesaid, by reason whereof the said lands are of much less value, to wit, less by £1000 to the Plaintiff than they otherwise would be, and the said Plaintiff has not been able to sell, and has been hindered from selling and disposing of the same, to th3 Plaintiff's damage of £1000." (2) " That after the commencement of the Landlord and Tenant AmendÂment Act (Ireland) 1860, by lease under the hand and seals of the Plaintiff and Defendant, and dated to wit the 8th day of February, 1868, the Defendant de (1) '23 & 24 Vict. c. 154, s. 41.-"Every lease of lands or tenements made after the commencement of this Act shall (unless otherwise expressly provided by such lease) imply an agreeÂment on the part of the landlord making such lease, his heirs, executors, admiÂnistrators, and assigns, with the tenant thereof for the time being, that the said landlord has good title to makesuch lease, and that the tenant shall have the quiet and peaceable enjoyment of the said lands and tenements withÂout the interruption of the landlord or of any person whomsoever during the term contracted for, so long as the tenant shall pay the rent and perform the agreements contained in the lease to be observed on the part of the tenant." THE IRISH REPORTS. R. mised to the Plaintiff the lands of Ballingale for the term of 99 years from the 25th of March, 1868, and thereby agreed with the Plaintiff that he, the DefendÂant, had good title to make said lease, although it is not otherwise expressly provided by the said lease. Yet Defendant, at the time of the making of the said lease, had not good title to make the same, whereby," &c. To the first count the Defendant pleaded a defence setting forth at length the lease declared upon, by which the Defendant, with the consent of William Wybrants, demised to the Plaintiff the lands above mentioned for the term stated. The lease contained covenants by the Plaintiff for payment of rent and for repair, and en the part of the Defendant for perpetual renewal .and for quiet enjoyment " Without any let, hindrance, interruption, or disturbance of said John TayÂlor, his heirs or assigns, or any other person or persons claiming or deriving from -or under him, them, or any of them. " And the Defendant says that, save as aforesaid, he did not covenant as in the said count alleged." In a second defence to the first count the Defendant pleaded that he had full and lawful authority to make the demise therein mentioned. To the second count the Defendant filed a defence identiyfing the lease with the deed mentioned in the first count, and pleading that, " save as aforesaid, he did not enter into the agreement in said count alleged." As a further defence the Defendant pleaded that "he had good title to make the lease therein mentioned." There were also the two following equitable defences pleaded to both counts :- " That the deed in the first and the lease in the second count mentioned is one and the same deed and instrument ; and Defendant says that, before and at the time of the execution of the said deed, the said Plaintiff had notice that the Defendant was a trustee of a certain indenture of marriage settlement of 12th of November, 1849, and that the said lands of Ballingale were held and owned by Defendant under the trusts of the said settlement, and not otherwise, and that the Defendant was not under or by virtue of said settlement at law authorized or empowered to make the demise in the summons and plaint mentioned, which is the want of power and authority in the first count and the want of title in the VoL. VII.] COMMON LAW SERIES. second count mentioned, and Plaintiff took said lease with such notice as aforeÂsaid, notwithstanding same. "And for a further defence on...