M'Seeney v Drapes

CourtCourt of Appeal (Ireland)
Judgment Date20 January 1905
Docket Number(1903. No. 236.)
Date20 January 1905

Barton, J.


(1903. No. 236.)











Ecclesiastical lease — Sub-lease — Covenant to renew toties quoties — Purchase of fee by sub-lessor — Obligation to renew — Irish Church Act, 1869 (32 & 33 Vict. c. 42, 12, 34).

A cathedral corporation leased a plot of ground, part of their fee-simple property, for forty-one years, without any right of renewal, to a lessee, whose trustees, in whom the lease became vested, executed a sub-lease of the premises with a toties quoties covenant for renewal. The defendants, who were assignees in trust of the lessee, purchased the fee-simple from the Commissioners of Church Temporalities, under section 34 of the Irish Church Act, and obtained a conveyance, dated 7th August, 1879. On the expiration of the sub-lease in 1900, the sub-lessee called on the defendants to make to him a grant in perpetuity in pursuance of the covenant to renew, which they declined to do:—

Held, by the Court of Appeal (affirming the judgment of Barton, J.), that the sub-lessee was not entitled to relief.

Bernard v. Hungerford ([1902] 1 I. R. 89) and Coey v. Pascoe ([1899] 1 I. R. 125) approved of. Postlethwaite v. Lewthwaite (2 J. & H. 237) explained and distinguished.

Trial of Action.

On the 28th November, 1860, the corporation of the Cathedral Church of St. Canice, in the diocese of Ossory, leased a certain plot of ground, containing 2 roods and 21 perches, part of the fee-simple property of the said corporation, and situate within the corporation of Irishtown and city of Kilkenny, to the Rev. Vernon R. Drapes, for a term of forty-one years, from the 25th March, 1861, at the yearly rent of £5 Irish. This lease contained no covenant for renewal.

On the 20th March, 1872, James Cumine, James George Robertson, and John Ryan, trustees of the lessee under a certain deed of 2nd April, 1863, executed a sub-lease of the aforesaid premises to William Hayes for a term of twenty-nine years from the 29th September, 1871, at the yearly rent of £20. This lease contained a covenant by the lessors with the lessee that they, “their executors, administrators, and assigns, shall and will make, grant, and execute to him, the said William Hayes, his executors, administrators, or assigns, a like lease as this present demise whenever and as often as they, the said James Cumine, James George Robertson, and John Ryan, their executors, administrators, or assigns, shall themselves get a renewal of said premises, on the request, costs, and charges of the said William Hayes, his executors, administrators, or assigns, and on payment by him or them to the said James Cumine, James George Robertson, and John Ryan, their executors, administrators, or assigns, of such fine as they the said James Cumine, James George Robertson, and John Ryan, their executors, administrators, or assigns, shall have paid for such renewal, first having deducted therefrom the sum of 5s. sterling for each year granted over and above the term in the present indenture of lease then unexpired, and the lease or leases shall be for the same term or terms as the said James Cumine, James George Robertson, and John Ryan, their executors, administrators, or assigns, shall renew for, and at the same yearly rent as payable by the present indenture of lease.”

All the estate and interest of James Cumine, James George Robertson, and John Ryan, in the premises, became vested in the Rev. Lombard Drapes and Thomas Drapes, the defendants in the present action, as trustees of an indenture of settlement dated 11th May, 1878.

In the year 1879 the defendants purchased the fee-simple of the premises from the Commissioners of Church Temporalities in Ireland under the provisions of the Irish Church Act, 1869, and by deed dated the 7th August, 1879, the premises were conveyed to the defendants in fee-simple.

All the estate and interest of the said William Hayes in the premises comprised in the above-mentioned sub-lease became vested absolutely in the plaintiff. This sub-lease expired on the 29th September, 1900. In the ordinary course the lease of the 20th November, 1860, would not have expired until the 25th March, 1902.

On the expiration of the sub-lease of the 20th March, 1872, the plaintiff called on the defendants to make to him a grant in perpetuity of said premises pursuant to the covenant contained in said sub-lease, which, however, defendants refused to do.

Molony, K.C., and Chaytor, for the plaintiff:—

If the lessors had themselves gained a renewal, it would have enured for the benefit of their lessee. Instead of that, they acquired the fee, and are not bound in the same way as under the lease. Although the terms obtained by a lessor are different from those under which he held at the date of the sub-lease, he is still bound to renew: Evans v. Walsh (1); Postlethwaite v. Lewthwaite (2). The lessors are unable, through the provisions of the Irish Church Act, to give the exact thing they covenanted to give; but the equitable doctrine is well founded that where a person is, through his own acts, not in a position to do a particular thing he had agreed to do, but has put himself in a position substantially to comply with his undertaking, he is bound to do so: see the judgment of the Vice-Chancellor in Lyttle v. Fox (3), at page 352. No doubt in the Court of Appeal the case was decided on the express terms of the covenant; but Fitz Gibbon, L.J., and Walker, L.J., recognised the existence of this doctrine: see pages 357 and 363. Here the defendants get an estate sufficient to feed the covenant. In Pilkington v. Gore (4), the covenantor obtained a fee-farm grant, and thereupon the toties quoties covenant for renewal in the lease in that case became inapplicable, yet the covenantee could not defeat his own grant. Coey v. Pascoe (5) seems against our contention, but it is really distinguishable. That was a case of a purchaser for value from the covenantor, and not a case of covenantor and covenantee; while in the present case there was no assignment for value, but merely an assignment to trustees, and section 13 of Deasy's Act gives the tenant the same remedy against the assignee as against the original landlord. Bernard v. Hungerford (6) is distinguishable, the main ground of the decision being that the sub-lessee had twenty years previously refused to join, and was consequently debarred twenty years after from claiming any equity.

We also rely on the doctrine of graft. A fiduciary relation attached to the new estate acquired by the defendants as in Gabbett v. Lawder (1); Randall v. Russell (2).

Fetherstonhaugh K.C.,, and Garrett W. Walker, for the defendants:—

We rest our case on three grounds—first, that under the Irish Church Act it was contemplated that all lands, except in the cases of archbishops' or bishops' lands, should be sold free from any customary privilege of renewal, and that it has not been shown that the defendants have defeated any right or interest of the plaintiff by becoming purchasers of the fee; secondly, that the defendants, as assignees of the interest of the covenantors of the lease of 1872, are only liable upon any covenant running with the interest covenantors had at the time of the lease, and not with any superior interest acquired under the deed of 1879; thirdly, that the toties quoties covenant for renewal cannot be strictly complied with.

As regards the first contention, it should be pointed out that there is no section in the Irish Church Act similar to the provisions contained in section 3 of the Episcopal and Capitular Estates (England) Act (14 & 15 Vict. c. 104). Postlethwaite v. Lewthwaite (3) was decided upon the special provisions in that section, expressly preserving rights of renewal in sub-lessees. No doubt, in the Irish Church Act, the rights of parties claiming under archbishops' or bishops' leases are preserved (see section 12, sub-sect. 3), but not of persons claiming under a lease from a cathedral corporation, as here. This is referred to and relied on by the Master of the Rolls in Bernard v. Hungerford (4), which is a direct case in point.

As regards the second contention, the defendants are assignees of the covenantors' interest; and having purchased the reversion in fee, are only liable on any covenant that ran with the land, but not on any covenant merely running with the covenantors' interest: Goey v. Pascoe (5). All the cases cited against us were cases between covenantor and covenantee. Where there is a covenant

to renew in a lease and the fee is acquired by the covenantor, the covenant to renew does not bind the fee; it binds only the mesne reversion. Muller v. Trafford (1); Kent v. Stoney (2); Brereton v. Tuohey (3); Randall v. Russell (4). The commissioners from whom we purchased were under no equity to renew, and were not bound by any covenant. Therefore, in the absence of any statutory provision or any equitable right, the plaintiff can only rely on the contract itself; but that only binds us so long as the lease existed. Lyttle v. Fox (5) was decided on the terms of the covenant. Section 13 of Deasy's Act only applies to assignees of the lessor's estate.

As to the third point, it would be impossible now to comply with the condition as to renewal or to renew at all, or to make provision for the payment of the fines. The plaintiffs, upon the terms of the contract, cannot claim a grant in perpetuity which is sought here.

Chaytor, in reply:—

The covenant is for the covenantor, his executors, administrators, and assigns. Therefore, on the terms of the contract, and on the ground of equity, whatever they acquired that was to be assigned over to us. The actual words of the contract cannot be literally interpreted on the ground of equity. Coey v. Pascoe (6) and other cases of that kind are clearly distinguishable. In those...

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