M'Nally v Gradwell

• Jurisdiction: Ireland
• Judgment Date: 12 January 1866
• Date: 12 January 1866
• Court: Rolls Court (Ireland)

M'NALLY

and

GRADWELL.

Rolls.

Turner v. NichollsENR 16 Sim. 565.

Mackley v. PattendenENR 1 Best & S. 178.

Copeland v. StevensENR 1 B. & A. 593

Goodwin v. NobleENR 8 El. & Bl. 587.

Tuck v. FysonENR 6 Bing. 331.

Beckham v. DrakeENR 8 M. & W. 846.

Carleton v. LeightonENR 3 Mer. 667.

Crosbie v. Tooke 1 M. & K. 431.

Price v. Assheton 1 Y. & Col. 435.

Wearing v. Ellis 6 D., M. & G. 596.

Tidway v. JonesENR 1 K. & J. 691.

Crotty v. Crotty 2 Ir. Jur. 161.

Price v. Asshelton 1 Y. & Col. 441.

Franklin v. Lord Brownlow 14 Ves. 641.

Dyson v. Hornsby 7 D. M. & G. 9.

Crosbie v. Tooke 1 M. & K. 431.

Sturgis v. MorseENR 2 De G. & J. 1.

Kaye v. FosbrookeENR 8 Sim. 28.

Major v. AuklandENR 3 Hare 77.

Battersby v. Rochford 2 H. of L. Cas. 408.

Dyson v. Hornsby 7 D. M. & J. 9.

Heath v. ChadwickENR 2 Phil. 649.

Tidway v. JonesENR 1 K. & J. 691.

Wearing v. Ellis 6 D. M. & G. 596.

512 CHANCERY REPORTS. 1865. Rolls. Nov. 10, 18, 28. 1866. Jan. 12. APNALLY v. GRADWELL. that , eld rent of £18. The petitioner stated that the agreement was re- H he could not duced to writing, and signed in the presence of a witness, and sue for a spe cific perform- that the respondent retained possession of it. On the same day ante of the contract. that the agreement was signed, a year's rent (£18) was paid by ourt C not decree the petitioner to the respondent, and a receipt given for that sum will The the specific per- by the latter. The respondent denied that the agreement was formance of a contract for a reduced to writing ; but, by a letter of the 12th of August 1862, lease to an in solvent tenant, he virtually admitted that the agreement was in his possession. Quare - Whether a dis- On the 17th of July 1863 the interest of the petitioner in the charged in- solvent can sue house in question was sold by auction under an execution by the for the specific Sheriff. The house was purchased by the petitioner's father. performance of a contract for The petitioner was discharged under the Insolvent Act, on the a lease after his assignee 23rd of October 1863, but no creditors' assignee was appointed. has elected to abandon it? He returned the sale of the house in his schedule, in which he stated Statement. that he bad no interest in any land, either by lease or as tenant at • will, or otherwise. Neither the insolvency nor the sale of the house were stated in the petition. But in an,affidavit filed after the cause was set down and partly heard, the petitioner stated that the house had been purchased by his father in trust for him. CHANCERY REPORTS. 513 was appointed ; and this being an agreement for the purchase of an estate or interest in land, the benefit of it would not, by reason of the Bankruptcy and Insolvency (Ireland) Act 1857 (20 & 21 c. 60, ss. 271, 272), vest in the assignee when appointed, GRADWELL. until he had elected whether he would abide by and execute such agreement, or abandon the same ; and it lies on the respondent, who is entitled to the rent reserved by the agreement, to apply to the Insolvent Court, under section 271, to compel the assignees to elect. If they do not elect, the insolvent continues under that section liable to the rent, and entitled to the benefit of the lease or agreement: Turner v. Nicholls (a); Mackley v. Pattenden (b); Copeland v. Stevens (c); Goodwin v. Noble (d); Tuck v. Fyson (e); Beckham v. Drake (f) ; Carleton v. Leighton (g). The insolvency of one of the parties to an agreement is not an answer to a suit for the specific performance of it : Crosbie v. Tooke (h); Price v. Assheton (i); Wearing v. Ellis (k). Argument. Mr. Warren and Mr. R. Foley, for the respondent. By the 2 18th section of the Bankruptcy and Insolvency (Ireland) Act 1857, the benefit of a contract for a lease becomes vested in the provisional assignee, who is the "assignee for the time being" within that section, until assignees are appointed, and shall have elected, under sections 271 or 272, to abandon the lease or the contract: Tidway v. Jones (1); Crotty v. Crotty (m).` IndependÂently of the Insolvent Act, the Court will not compel a landlord specifically to perform a contract for a lease with an insolvent tenant : Price v. Assheton (n); Franklin v. Lord Brownlow (o); (a) 16 Sim. 565. (c) 1 B. & A. 593. (e) 6 Bing. 331. (g) 3 Mer. 667. (i) 1 Y. & Col. 435., (01 K. & J. 691. (n) 1 Y. & Col. 441. you 16. (b) 1 Best & S. 178. (d) 8 El....