Maunsell v Hort

JurisdictionIreland
Judgment Date13 December 1877
Date13 December 1877
CourtCourt of Appeal in Chancery (Ireland)

Ch. App.

MAUNSELL
and

HORT.

Spunner v. Walsh 10 Ir. Eq. R. 386.

Gibson v. DoegENR 2 H. & N. 615.

The Duke of Bedford v. The Trustees of the British Museum 2 M. & K. 552.

Wentworth v. Turner 3 Ves. 3.

Earl of BurlingtonENR 5 B. & Ad. 507.

Jones v. ChappellELR L. R. 20 Eq. 539.

Barry v. BarryENR 1 Jac. & W. 651.

Lambert v. Lambert 2 Ir. Eq. R. 210.

Doran v. Carroll 11 Ir. Eq. R. 379.

Elliott v. Watkins 1 Jo. 308.

Cosser v. Collinge 3 M. & K. 283.

Tulk v. MoxhayENR 2 Phil. 774.

Parker v. WhyteENR 1 H. & M. 167.

Wilson v. HartELR L. R. 1 Ch. App. 463.

Feilden v. SlaterELR L. R. 7 Eq. 523.

Dumpor's case 1 Smith, L. C. 30.

Macher v. The Foundling HospitalENR 1 V. & B. 188.

Kemp v. SoberENR 1 Sim. (N. S.) 517.

Lord Courtown v. Ward 1 Sch. & Lef. 8.

German v. Chapman Since reported, 7 Ch. Div. 271.

Bonnett v. Sadler 11 Ves. 526.

Hanbury v. Litchfield 2 M. & K. 629, 633.

Wilbraham v. LiveseyENR 18 Beav. 206, 209.

Macher v. The Foundling HospitalENR 1 V. & B. 188, 191.

Dumpor's CaseUNK 4 Rep. 119.

Roper v. WilliamsUNK 1 T. & R. 18.

Peek v. MatthewsELR L. R. 3 Eq. 515.

Spunner v. Walsh 10 Ir. Eq. R. 401.

Doe v. WoodbridgeENR 9 B. & C. 377.

Lease with covenant against carrying on certain trades — Sub-lease of dwelling-house and "coach-house and stable," without restrictive covenants — Partial wawer of covenant by head landlord — Conversion of coach-house and stable into butcher's shop authorized by sub-lessee — Notice — Waste — Injunction.

88 Prob. 1877. EARL Or LON GFOR D V. PURDON. LAW REPORTS (IRELAND). [L. R.1 " the fraud to vitiate must be contemporaneous, it must be disÂcovered in and form part of the res gestce," is important, though undue influence rather than fraud was the subject of that case. There was, in my opinion, no evidence of fraud proper to be-submitted to the jury in-connexion with the will of September,. 1874, and the codicils propounded by the Plaintiff. The order on this motion will be to set aside the findings on the issues of fraud and undue influence, as regards the will and codicils, on the grounds that there was no evidence thereon proper to be submitted to the jury, and to set aside these findings, and also the findings that the testator was not of sound mind, &c , as regards the will and codicils, on the ground that the verdict was against the evidence and the weight of the evidence, and unsatisÂfactory. The costs of the trial and of this motion will be reserved, but in any event more than one set of costs will not be given to the Defendants ; and the Defendants will be at liberty to appeal from this order as they may be advised. Solicitors for the Plaintiff : S. S. and E. Reeves 85 Sons. Solicitors for the Defendants : Mooney, and G. Fottrell Son_ Ch. App. MAUNSELL v. HORT. 1877. Du. 3, 4, 13. Lease with covenant against carrying on certain trades-Sub-lease of dwelling-house and " coach-house and stable," without restrictive covenants-Partial waiver of covenant by head landlord-Conversion of coach-house and stable vac butcher's shop authorised by sub-lessee-Notice-Waste-Injunction. In 1808, the dwelling-house No. 1, Merrion-square, East, in the city of Dublin, "and also the coach-house and stable belonging" thereto, were demised for a term of years, the lessee covenanting to keep the premises in good repair, and so deliver them up at the end of the term. The coach-house and stable lay at the rere of the house, but were separated from it by other buildings. There were no restrictive covenants in, the lease, although the lessor was himself lessee of the premises as well as of the ground covered by the intervening buildings, under a lease of 1806, which contained covenants against using the front of any of the houses as a shop, and against, among other trades, that of a butcher, involving, at the option of the head landlord, forfeiture, or an additional rent VOL. I.] CHANCERY DIVISION. 89 while the trade should be carried on. The lease of 1808 contained a reserva- Ch. App. tion of all royalties to the head landlord, but made no direct reference to that of 877. 1806. In 1875 the owner of the lessee's interest in the lease of 1808 made a MAMORU, sub-lease of the coach-house and stable, authorising their conversion into a v. butcher's shop. On their having been so converted, and their structure altered, Hoar. the owner of the reversion upon the lease of 1808 filed a bill for an injunction, when the Master of the Rolls made a decree perpetually restraining the use of the altered premises as a butcher's shop, although some of the intervening buildings which fronted the street had been used as shops, but not as butchers' shops, for a number of years. The sub-lessee of 1875 having appealed : Held, that his Honour's decision should be affirmed, with the addition to the decree of a clause prohibiting any of the trades specified in the lease of 1806 from being carried on upon the premises sub-demised to the Appellant. Semble, the doctrine of Dumpor's Case (4 Rep. 119) does not apply to a continuing breach of covenant. APPEAL by the Defendant James Doyle from a decree of the Master of the Rolls, of the 25th of April, 1877, granting a perÂpetual injunction against the Appellant's using certain premises as a butcher's shop. See the case reported, Ir. R. 11 Eq. 478, where the facts are set out in detail. They were mainly as follows: By a lease of the 12th of December, 1806, Lord Fitzwilliam now represented by the Earl of Pembroke, demised a plot of ground at the North-east corner of Merrion-square, Dublin, on which the houses No. 1, 2, and 3, Merrion-square, East, were subsequently built, to Sir James Bond, for 130 years from the 29th September, 1806, at the yearly rent of £30. The lease conÂtained a covenant by Sir James Bond, for himself, his heirs, exeÂcutors, &c., against using as a shop any part of the front of the houses to be built on the plot, and against carrying on, or perÂmitting to be carried on, upon the premises certain trades, including that of a butcher; and it provided that, on breach of the covenant, (2( miEe should be void, or at the lessor's election the lessee should pay from the time of the breach, and while the trade should be carried on, an additional yearly rent of £60. On the 8th of July, 1808, Sir James Bond demised to Thomas Lloyd the house No. 1, Merrion-square, East, and the " coach-house and stable belonging thereto," for 125 years. The lease contained a covenant by Lloyd to keep the demised premises in repair, and so yield them up on the expiration of his term. VOL. I. LAW REPORTS (IRELAND). [L. R. T. Sir James Bond's interest became vested in the Plaintiffs, and Thomas Lloyd's in Sir Josiah W. Hort. On the 11th November, 1875, the latter, in consideration of £100 and a yearly rent of £20, sub-demised the coach-house and stable of No. 1 to the DefenÂdant Denis Doyle for fifty-six years, with a clause that it should be lawful for the sub-lessee to open and keep open a butcher's shop on the premises. Denis Doyle, on the 1st February, 1876, asÂsigned his interest to his son, the Defendant James Doyle. A butcher's shop having accordingly been opened on the premises included in the sub-lease of 1875, the original bill was filed in June, 1876, for an injunction against the Doyles and Sir J. W. Hort, and the latter having died, the suit was revived against his representatives. • A plan of the premises will be found at p. 480 of the report already referred to, and further particulars as to the leases of 1806 and. 1808 appear from the case of Spunner v. Walsh (1). Mr. Lawless, Q. C. (with him Mr. W. H. Monek), for the ApÂpellant : The particulars connected with one branch of the title to these premises is reported in Spunner v. Walsh (1'. It must be preÂsumed that Lord Pembroke has waived his right of prohibiting certain trades, as he has allowed many of the houses in the neighÂbourhood to be turned into shops, which they now are. A jury would presume that the covenants of 1806 had been released : Gibson. v. Doeg (2). Even soap-boiling and other offensive trades have been carried on without objection on some of the premises. Lord PemÂbroke could not, owing to his acquiescence, obtain the injunction sought here : The Duke of Bedford v. The Trustees of the British Museum (3). The predecessors of the Plaintiffs should not have given an unqualified lease in 1808, and the Plaintiffs cannot now complain of being exposed to proceedings at law. This Court will not assist them to defeat their own grant : Wentworth v. Turner (4); and does not interfere in cases of trifling waste : Doe d. Grubb v. The (1) 10 Ir. Eq. R. 386. (2) 2 & N. 615. (3) 2 M. & K. 552. (4) 3 Yes. 3. VoL. I.] CHANCERY DIVISION. 91 Earl of Burlington (1) ; Jones v. Chappell (2) ; Barry v. Barry (3) ; C1. App. _Lambert v. Lambert (4) ; Doran v. Carroll (5). 1877. MeuNsELL Mr. Jellett, Q. C. and Mr. W. D. Andrews, Q. C. (with them HOST. Mr. R. Reeves), for the Respondents : The covenant to repair contains the word " maintain ;" thereÂfore the coach-house and stables should be preserved as such, whereas there has been a total structural alteration of them. The evidence shows no intention on the part of the Plaintiffs to allow the stable to be turned into a butcher's shop, and the Court will not allow its distinctive character to be changed : Elliott v. Watkins (6). The inheritance of Lord Pembroke's estate will be materially inÂjured if residentiary houses on it are turned into butchers' shops. These premises were demised as stables in 1808, and also in the lease of 1875, though the latter authorised their being converted into a butcher's shop. The lease of 1808 contained on the face of it a reservation of royalties to Lord Fitzwilliam, which ought to have shown the lessee that his lessor was himself a lessee. Mr. Maunsell's evidence shows that Sir J. W. Hort had actual notice of the restrictive covenants in the lease of 1806, though he would have...

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