MacNamara v Vincent

• Jurisdiction: Ireland
• Judgment Date: 26 January 1852
• Date: 26 January 1852
• Court: High Court of Chancery (Ireland)

Chancery.

MACNAMARA

and

VINCENT.

Jenkins v. BriantENR 6 Sim. 603.

Kinaston v. ClarkeENR 2 Atk. 204.

Morse v. TuckerENR 5 Hare, 79.

Morrant v. GoughENR 7 B. & C. 206.

Gawler v. WadeENR 1 P. Wms. 99.

Caldwell v. Becke 2 Exch. R. 318.

Close v. WilberforceENR 1 Beav. 112.

Sanders v. BensonENR 4 Beav. 350.

Willson v. LeonardENR 3 Beav. 373.

Fagg v. Dobie 3 Y. & C. Ex. R. 96.

Beale v. SandersENR 3 Bing. N. C. 850.

Greenwood v. TaylorENR 14 Sim. 505, 524.

Saunders v. Bournford Finch. R. 424.

Danby v. Danby Finch. R. 220.

Donisthorpe v. PorterENR 2 Eden. 164.

Nurse v. Yerworth 3 Swanst. 618.

Thorn v. Newman 3 Swanst. 603.

Marsh v. WellsENR 2 Sim. & St. 87.

The Earl of Portmore v. BunnENR 1 B. & C. 694.

Cooch v. Goodman 2 Q. B. 580.

Cardwell v. LucasENR 2 M. & W. 111.

Moore v. ClarkENR 5 Taunt. 90.

Nixon v. Denham 1 Jebb & Sym. 416; S. C. 1 Ir. Law Rep. 100.

Warren v. StawellENR 2 Atk. 125.

Bridges v. Bridges 3 Ves. 120.

Welsh v. WelshENR 4 M. & S. 333.

Wilson v. KnubleyENR 7 East, 128.

Farley v. BriantENR 3 Ad. & E. 839; S. C. 5 N. & M. 42.

Pitman v. WoodburyENR 3 Exch. Rep. 4.

Lucas v. ComerfordENR 3 Bro. C. C. 166.

Flight v. BentleyENR 7 Sim. 149.

Moore v. GregENR 2 Phil. 717.

Marriott v. CottonENR 2 Car. & Kir. 553.

Doe v. RowlandsENR 9 Car. & P. 734.

Hopkins v. Murray 12 Ir. Law Rep. 359.

Burnett v. LynchENR 5 B. & C. 589; S. C. 8 Dow. & Ry. 388.

Pilkington v. ShallerENR 2 Vern. 373.

Stokes v. RussellENRENR 3 T. R. 678; S. C. 1 H. Bl. 562.

Andrew v. Pearce 1 New R. 158.

Noke v. Awder Cro. Eliz. 373.

Todd v. Gee 17 Ves. 273.

Whistler v. Mainwaring 3 Woodesson, 465, 1st ed.; 278, 2nd 3d.

Hall v. SurteesENRENR 5 B. & Ald. 687; S. C. 8 B. & Ald. 616.

Farley v. BriantENRUNK 3 Ad. & El. 839; S. C. 5 Nev. & M. 42.

Brien v. Brien Batty R. 684.

Bermingham v. BurkeENRUNK 2 Jo. & Lat. 699; S. C. 9 Ir. Eq. Rep. 86.

The Bailiffs of Ipswich v. Martin and ParkerENR Cro. Jac. 411.

Moore v. Maguire 11 Ir. Law Rep. 272.

Marriott v. CottonENR 2 Car. & Kir. 553.

Vivian v. CampionENRENR 1 Salk. 141; S. C. 2 Ld. Raym. 1125.

Luxmore v. RobsonENR 1 B. & Ald. 584.

Kingdon v. NottleENR 4 M. & S. 53.

Moore v. ClarkeENR 5 Taunt. 89.

Shortridge v. LamplughENR 2 Ld. Raym. 798.

Clow v. Brogden 2 Man. & Gr. 39, 53.

Nixon v. Denkam 1 Jebb & S. 416; S. C. 1 Ir. Law Rep. 100.

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Fagg v. Dobie 3 Y. & C. Exch. C. 96.

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Spencer's caseUNK 5 Rep. 16, a.

Hill v. Barclay 16 Ves. 402.

Harley v. KingENR 2 Cr. M. & R. 18, 22.

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Turner v. LambENR 14 M. & W. 412.

CHANCERY REPORTS. 481 By indentures of lease and re-lease, dated the 10th day of October 1789, Lord Mountjoy (who was seised in fee) conveyed to Alexander Campbell, his heirs and assigns, a piece of ground on the west side of Mountjoy-square, in the county of Dublin, for the lives of George the Third, the Prince of Wales (afterwards George the Fourth), and the Duke of York, and the survivor, at the yearly rent of £37. 10s. of the then currency, with a covenant for perpetual renewal. Alexander Campbell entered into possession of the demised preÂmises, and built five houses thereon ; and by indenture of lease dated the 11th day of August 1803, in consideration of £600, of which £200 was paid down, and £400 secured as therein mentioned, deÂmised one of these houses, then No. 13, but now No. 14 MountjoyÂsquare, west, with the yard and offices annexed thereto, to Francis Jan. 14, 15, 16, 26. Rent falling due, after the death of the lessee, under a covenant for himself; his heirs, execuÂtors, adminisÂtrators and assigns, to pay it, is not such a debt as can, under the Statute of Fraudulent Devises (4 Anne, c. 5, Ir., 3 W. 4- M., c. 14, Eng.) be enforced against his real estate in the hands of his devisee. A, holding premises under a lease, made in 1789. for three lives, with a covenant for perpetual renewal, demised them by lease in 1803 to B for the term of nine hundred years. That lease contained covenants by B for himself, his heirs, execuÂtors, administrators and assigns, to pay rent and to keep the premises in good repair during the term, and at the end of it to deliver them up in such repair and condiÂtion. In 1830 the last c. q. vie in the lease of 1789 died. In 1827 and in 1835 renewals had been made to a trustee for certain parties claiming under the will of A. That trustee died in 1840. In that year another renewal was granted to anoÂther trustee for the same persons. B having died, his executrix, in 1838, assigned his interest in the premises to C, whose administrator assigned them in 1846 to D, a pauper. Subsequently to the death of B, the rent payAble.to the persons claiming under A became in arrear, and the premises fell out of repair. Upon a suit in equity instituted by those persons Held, 1.-That the real estate of B (the lessee of 1803) in the hands of his deviÂsee was not liable to the rent. 2.-That the personal estate of B in the hands of his executrix continued liable for breaches of the covenants to pay rent and to repair. 3.-That the personal estate of C, the assignee of B's interest in the lease of 1803, NM, in the hands of his administrator, liable for breaches of the covenants to pay rent and to repair, which occurred between the date of the assignment to him in 1838, and that of the assignment by his administrator to D in 1846. 4.-That D would be liable for breaches of both covenants which might occur during the period of his occupation. Semble-That the petitioners were entitled to substantial damages for breaches of the covenant to repair, and not merely to such a sum as would, if kept at interest until the end of the term of nine hundred years, then suffice to put the premises in repair. Marriott v. Cotton (2 Car. & Kir. 553), Doe v. Rowlands (9 Car. & Pay. 734), and Jenkins v. Bryant (6 Sim. 603), doubted. VoL. 2. 62 482 CHANCERY REPORTS. Blake the elder, for the term of nine hundred years from the 29th day of September then next, at the yearly rent of £100 of the then currency, payable half-yearly on the 25th day of March and the 29th day of September. This lease contained a covenant by Francis Blake the elder, "for himself, his heirs, executors, administrators and assigns," that "he and his heirs, executors, administrators and assigns," would, durÂing the continuance of the term, pay, or cause to be paid, the reserved rent to Alexander Campbell, his heirs, executors, admiÂnistrators and assigns, on the appointed days. It was also provided that if any person who should inhabit the demised premises should carry on there any of the noisy or noxious trades mentioned in this lease, " without the license or consent of the Right Hon. Luke Lord Viscount Mountjoy, his heirs and assigns, and the said Alexander Campbell, his heirs, executors, administrators and assigns, first had in writing under his or their hands," the lessee should pay a further rent of £50 per month while such trade should be so carried on. The lease also contained the following covenant :-" And the said Francis Blake doth hereby, for himself, his heirs, executors, administrators and assigns, covenant, promise and agree to and with the said Alexander Campbell, his heirs, executors, administraÂtors and assigns, that he the said Francis Blake, his heirs, execuÂtors, administrators and assigns, shall and will from time to time, and a all times hereafter during the said term, well and sufficiently preserve, uphold, maintain, sustain, amend and keep all and singular the said demised premises, and all improvements whatsoever that now are, or at any time hereafter during the continuance of this demise shall be, built, erected or made thereon, in good and sufficient teÂnantable order, repair and condition, and the same in such good, sufficient and tenantable order, repair and condition at the end of the said term, or other sooner determination thereof, shall and will so leave and yield up unto the said Alexander Campbell, his heirs, executors, administrators and assigns." The lease was executed by both lessor and lessee, and registered. The lessor's title was not disclosed by the lease, save so far as it might be collected that he held under Lord Mountjoy, from the CHANCERY REPORTS. 483 prohibition of the lessee's carrying on the above trades without the license of Lord Mountjoy as well as of the lessor. That circumÂstance was relied upon on behalf of the defendants against whom the bill sought relief. By a memorial of a deed of mortgage it appeared. that on the 12th day of August 1803 (the day after the date of the lease), Francis Blake the lessee assigned the house by way of mortÂgage for the nine hundred years term to Alexander Campbell the lessor, to secure the £400, the residue of the fine. Alexander Campbell, the lessor, by his will, dated the 5th day of February 1808, devised all his messuages, houses, tenements and hereditaments, situate in the city and county of Dublin, and all his estate and benefit of renewal therein, unto Bennett Dugdale, his heirs and assigns, as to the above mentioned dwelling-house, with its appurtenances, in Mountjoy-square, and other property, to the use of his daughter the plaintiff, Charlotte Macnamara, then Charlotte Campbell, and her assigns, during her life, with remainder to all her children as tenants in common, in quasi tail general, with cross remainders in quasi tail general between them, with remainders over ; and appointed his three sons, Burrowes his eldest son and heir-at-law, Peter and Alexander the younger, executors and resiÂduary legatees, and died shortly after, without altering or revoking that will. The three executors proved it in the Prerogative Court. Alexander Campbell the younger survived his co-executors, and died in the year 1841, having by his will, dated 31st March 1833, appointed his son the Reverend Theophilus...