Lessee Orr v Stevenson

• Jurisdiction: Ireland
• Judgment Date: 01 June 1842
• Date: 01 June 1842
• Court: Court of Exchequer Chamber (Ireland)

Exch. Chamber

Lessee ORR

and

STEVENSON.

Twynam v. PickardENR 2 B. & Al. 112.

Doe dem. Gilbert v. RossENR 7 M. & W.120.

Rutter v. Chapman 8 M. &. W. 37

Denham v. DormerENR cited in 2 And. 84.

Schondler v. WaceENR 1 Camp. 487.

Hepper v. Marshall 9 B. Moore, 721.

Whittingham's caseUNK 8 Rep. 44.

Wentworth's caseENR 3 Dyer, 348.a, pl. 13.

Wigg v. WiggENR 1 Atk. 383.

Hodges v. NewcomenUNK 5 Rep. 15.

Anne Mayowe's caseUNK 1 Rep. 146, b.

Albany's caseUNK 1 Rep.111, b.

Edwards v. SleatorENR Hardr. 416.

Jones v. WimwoodENR 3 M. & W. 653.

Winnington's case Ante.

Ferrers v. Borough Cro. Eliz. 665.

Nepean v. KnightENR 2 M. & W. 914.

Brown v. SluckerENR 1 C. & J. 587.

Davies v. Lowndes 5 Scott, 869.

Enfield v. HillsENR 2 Lev. 236.

Street v. HopkinsonENR Temp. Hardw. 345; S.C. 2 Str. 1055.

Davies v. PierceENR 2 T.R. 126, vide note.

Podden v. Bartlett 5 N. & M. .387.

Lessee Smyth v. Nangle 6 Law Rec. N.S. 334.

Corner v. ShawENR 4 M. & W. 168.

Ford & Sheldon's case 12 Co. 1.

Smyth v. CoffinENR 2 H. Bl. 444

Mitchell v. HughesENR 6 Bing. 689

Wright v. FairfieldENR 2 B. & Ad.727.

Whittingham's case Ante.

Dumpor's caseUNK 4 Rep. 120.

Lee v. ArnoldENR 4 Leon, 27.

Wivel's caseENR Hob. 45.

Anne Mayowe's case Ante.

Fawcett v. Hall Al. & Nap. 248.

Cranmer's case Cro. Eliz. 69.

2 CASES AT LAW. T. T. 1842. Earch.Chanzber May 25. June 1. Where a grantor in a deed of feeÂÂfarm,reserving rent, and a right of re-enÂÂtry to him and hi; heirs and assigns, asÂÂsigns the rent to a third party, the condition is extinguished, and an ejectÂÂment cannot be maintained on an entry for condition broÂÂken,by the heir of the grantor. The defendÂÂant, in a bill of exceptions, stated, that he had insisted before the learned Judge, "that the said condition of reÂÂentry in the said fee-farm grant containÂÂed, was altogeÂÂther gone by the assignment and release of the 1st of NoÂÂvember 1824; or if not desÂÂtroyed by that assignment and release, then that the said power of re-entry was gene by the said assignÂÂment in the matter of the insolvency of J. D. ;" Held, that it was not Lessee ORR v. STEVENSON.* (Exchequer Chamber.) THIS was an ejectment on the title, tried before Burton, J., at the Spring Assizes 1839, for the county of Antrim ; when a bill of exceptions was taken to the charge of the learned Judge ; and upon it the following facts appeared.-There were several demises laid in the ejectment, but that on which the lessor of the plaintiff relied was in the name of John Dickson, and the day of the demise was the 9th of June 1838. The lessor of the plaintiff gave in evidence an indenture of the 12th of November 1818, made between Francis Dickson of the one part, and Nicholas Delacherois Cromelin of the other part, whereby Francis Dickson, for the conÂÂsideration therein mentioned, granted all that and those the lands in the declaration mentioned ; habendant to the use of the said Cromelin, his heirs and assigns, for ever-yielding and paying to the said Francis DickÂÂson, his heirs and assigns, the yearly rent of 180 late currency, by two equal payments, on every 1st of May and 1st of November : and it was thereby provided and agreed, that if the said yearly rent, or any part thereof, should be behind, or in arrear for twenty-one days after the days of reservation, it should be lawful for the said Francis Dickson, his heirs and assigns, to enter and distrain, and to sell and dispose of the distress in satisfaction of the reserved rent, and all arrears thereof, if any should happen to be due-and in case the said reserved rent, or any part thereof, should happen to be in arrear for thirty days next after any of the days on which the same was reserved ; and no sufficient distress countervailing the said rent and arrears, could be had or found on the said premises, or any part thereof, then it should be lawful for the said Francis Dickson, his heirs and assigns, into the said demised premises, or any part thereof, in the name of the whole, to re-enter, and the same to have again, reÂÂpossess, and enjoy, as in his former estate. Francis Dickson died in 1825, leaving John Dickson, one of the lessors of the plaintiff, his heir-at-law. The plaintiff then gave in evidence a power of Attorney, dated the 30th of May 1838, from John Dickson to one Andrew Brock, authorising him to enter upon the premises in the declaration mentioned, or any part thereof, pursuant to the said condition of re-entry ; and also to demand open to the defendant to argue, that the said right of re-entry had been transferred to the provisional assignee of the insolvent. Seeable.-That a right of re-entry, on a condition not broken, passes by the assignment to the provisional assignee of the heir of the grantor, who had become insolvent. Quare.-Can the Court, under the provisions of the 28 G. 3, c. 31, s. 1, order judgÂÂment to he en'ered up for the party taking a bill of exceptions, without awarding a venire de novo f • This case is reported by Mr. D. M'Causland. CASES AT LAW. 3 and receive all the arrears of rent due under the deed of the 12th of November 1818, and to do all other acts for defeating the estate created by the said indenture, and for the recovery of the said lands and preÂÂmises. On the 30th, and also on the 31st of May 1838, the said Andrew Brock went, in company with two other persons, to the lands, and deÂÂmanded the sum of 90 late currency, for one half year's rent due on the 1st of May then inst. The demands were made twice on each day, about half an hour before, and half an hour after, sunset, at the hall doors of the two principal houses ; but no money was paid or offered on any of the said occasions. They kept together and went over the greater part, but not all, of the lands. Some of the lands about one of the houses was in good order, but the lands generally were uncultivated, and in a state of nature. Evidence was also given as to the value of the cattle and goods subject to distress on the land. At the time of the demand, the sum of 1357. 7s. 8-id. was due for arrears of rent up to the 1st of November 1837, which was not demanded. It also appeared, that Andrew Brock was the receiver appointed by the Court of Exchequer in a cause wherein William Ryder and others were plaintiffs, and John Dickson, James Orr, James Vance (who were also lessors of the plaintiff) and others, were defendants, and that the ejectment was brought pursuant to an order of the Court, directing that the said Andrew Brock, as receiver in the said cause, and therein appointed over the said fee-farm rent, should demand the rent in arrear under the fee-farm grant of the 1st November 1818; and in case of non-payment, to bring an ejectment at common law for the recovery of the possession of the lands included in the said fee-farm grant, pursuant to the aforesaid provision for re-entry therein contained. The defendant gave in evidence an indenture of mortgage of the 1st of November 1824, made between the said Francis Dickson of the one part, and James Orr, Robert Orr, and Thomas Vance, of the other, whereby Francis Dickson, in consideration of 1000, granted, bargained, sold, aliened, released, and confirmed unto J. Orr, R. Orr, and T. Vance, their heirs and assigns for ever, all the lands and premises in the declaration mentioned, &c., and the yearly and other the rents, issues and profits thereof, subject, nevertheless, to redemption on payment of 1000 and interest on the 1st of May then next ensuing. The defendant also gave in evidence the several proceedings in the Court for the discharge of Insolvent Debtors in Ireland, in the matter of the insolvency of John Dickson, including the assignment from him to John Mitchell, the proÂÂvisional assignee, of all his, the said John Dickson's estate and interest in the aforesaid lands and premises ; and also the adjudication of the Court, directing the discharge of John Dickson from custody, as an insolvent debtor-which several proceedings were dated in the month of DecemÂÂber 1827. The evidence on both sides having closed, the Counsel for the defend 4 CASES AT LAW. ant insisted that the condition of re-entry in the fee-farm grant contained, was altogether gone by the assignment and release of the 1st of NovemÂÂber 1824; or if not destroyed by that assignment or release, then that the said power of re-entry was gone by the assignment in the matter of the insolvency of John Dickson. It was also insisted, that Andrew Brock had not been shown to have had any sufficient authority for demanding the aforesaid rent, on either the 30th or 31st of May 1838, in behalf of the parties entitled thereto ; and that, therefore, the non-compliance with the said demand did not amount to a breach of the condition. It was likewise insisted, that Andrew Brock and his two companions, or some of them, ought, on the occasion of demanding the rent, to have searched all the lands and premises conveyed in the fee-farm grant, in order to ascerÂÂtain whether there was any sufficient distress -thereon ; but that it appeared, on the evidence given by the plaintiff, that all the lands and premises had not been searched on the said occasions. On these several grounds, Counsel called for a nousuit, or a direction to find a verdict for the defendants. It was further insisted by the Counsel for the defendÂÂants, that all the arrears due ought to have been demanded, and not the half year's gale of rent alone-or that the distress was only required to cover the sum demanded, viz. 90, as the demand of that sum alone must be considered as a waiver of the rest of the arrears. The Jury, on- a collateral issue, found that there was sufficient distress to cover the 90 demanded; but not sufficient to cover all the arrears then due. The Judge then told the Jury, that if they believed there was not sufficient to countervail all the arrears, they should find for the plaintiff. The Jury accordingly found for the plaintiff; and the...