McDonnell v Stenson

• Jurisdiction: Ireland
• Judgment Date: 01 January 1921
• Date: 01 January 1921
• Docket Number: (1919. No. 944.)
• Court: Court of Appeal (Ireland)

M'Donnell v. Stenson.

PATRICK M'DONNELL

and

SARAH STENSON (1)

(1919. No. 944.)

Appeal.

Landlord and tenant - Lease for three lives and ninety-nine years, whichever shall continue longest, with a covenant by landlord to nominate new life on death of every cestui que vie dying during the term of ninety-nine years - Non-renewal - Laches - Death of tenant - Purchase under Land Purchase Acts - Registration of Title - Devolution.

By an indenture of lease, dated the 1st February, 1832, lands were granted to M., his heirs and assigns, for the lives of three persons, and for the term of ninety-nine years, whichever should continue longest, with a covenant by the landlord that, on the death of each cestui que vie dying during the term, the landlord would nominate another life in place of that of the cestui que vie so dying. The cestuis que vie named in the lease died in 1863, 1864, and 1893 respectively, and no new life was ever nominated. The lessee's interest under the lease became vested in B. M., who signed an agreement for the purchase of the lands under the Land Purchase Acts, on the 1st November, 1915, and who died intestate on the 11th February, 1918, the advance of the purchase-money having been sanctioned in January, 1918. The lands were duly registered under the Local Registration of Title Act, 1891 (54 & 55 Vict. c. 66).

On appeal from Powell J. ([1920] 1 I.R. 88): Held, by Ronan L.J., that the right of renewal had not been lost, and by O'Connor L.J. that such right of renewal had been lost, Mr James Campbell C. not giving a decision upon this question.

Held, by the Court, that under the Local Registration of Title Act, 1891 (54 & 55 Vict. c. 66), sect. 84, on the death of B. M. the lands did not vest in the plaintiff as her heir-at-law, but devolved as personalty.

Appeal.

By indenture dated the 1st February, 1832, Sir Francis Lynch Blosse demised and granted to James M'Ellinn certain lands "to have and to hold all and singular the said premises hereby demised or intended so to be, with their and every their appurtenances (except as before excepted) unto the said James M'Ellinn, his heirs, executors, administrators, and assigns, from the day next before the day of the date of these presents, for and during the natural life and lives of Robert Lynch Blosse, Wm. Lynch Blosse, and Francis Lynch Blosse, the first, second, and

third sons of the said Sir Francis Lynch Blosse, and for and during the natural life and lives of such other person or persons as by virtue of a clause for renewal hereinafter mentioned may be added thereto, and for and during the term, time, and space of ninety-nine years, to commence at and be computed from the first day of May last past, whichever of the said lives or years shall continue longest," at the rent of five shillings per year. The covenant for renewal contained in the said lease was as follows: "And the said Sir Francis Lynch Blosse doth for himself, his heirs, executors, administrators, and assigns, covenant, promise, and agree to and with the said James M'Ellinn, his heirs and assigns, in manner following, that is to say, that in case the cestui que vie in this indenture named should happen to die before the expiration of the said term of ninety-nine years, that then and in such case he, the said sir Francis Lynch Blosse, his heirs and assigns, shall and will, on the death of the person so happening first to die as aforesaid before the expiration of said term of ninety-nine years, and on payment of all rent and arrears of rent then due and owing, add and insert to the time and term of this demise the life of such person as he, the said Sir Francis Lynch Blosse, his heirs or assigns, shall nominate and appoint in the place and stead of the person so happening first to die as aforesaid, which life so to be added and inserted is to be endorsed on this indenture, or written on a separate deed or label for that purpose, and in like manner from time to time during the said term of ninety-nine years upon the death or failure of any other cestuis que vie in this indenture named or hereafter to be successively nominated as aforesaid, and upon payment of all arrears of rent which shall then be due, that then he, the said Sir Francis Lynch Blosse, his heirs and assigns, shall and will immediately after the death or failure of every other such cestui que vie so successively happening to die before the expiration of said term of ninety-nine years as aforesaid, add and insert to the time and term of this demise the life of such other person as he, the said Sir Francis Lynch Blosse, his heirs or assigns, shall nominate, which several lives so to be nominated and inserted successively are to be endorsed on this indenture, or written on separate deeds or labels as aforesaid."

By another indenture dated the 28th August, 1855, Sir Robert Lynch Blosse demised and granted to Patrick M'Ellinn other lands, to hold unto the said Patrick M'Ellinn, his heirs and assigns, during the lives of three cestuis que vie therein named, and for the term of ninety-nine years, whichever of the said lives or years should continue longest, with a covenant for renewal similar to that contained in the said lease of the 1st February, 1832. The cestuis que vie named in the lease of the 1st February, 1832, died in 1863, 1864, and 1893 respectively; those named in the lease of the 28th August, 1855, died in 1870, 1893, and 1915 respectively, and no new life was ever nominated in the case of either lease.

Both of the said leases became vested in one Barbara M'Donnell, who died intestate on the 11th February, 1918. Barbara M'Donnell signed an agreement to purchase the leasehold premises under the provisions of the Irish Land Purchase Acts on the 1st November, 1915; the advance of the purchase-money was sanctioned on the 2nd January, 1918, and a fiat purporting to vest the lands in the said Barbara M'Donnell was made per incuriam on the 29th May, 1919, but this fiat was void, owing to the previous death of Barbara M'Donnell.

This summons was brought by the plaintiff, claiming to be entitled to the lands comprised in...