Morrogh v Alleyne

• Jurisdiction: Ireland
• Judgment Date: 09 June 1873
• Date: 09 June 1873
• Court: Chancery Division (Ireland)

V. C. Court.

MORROGH

and

ALLEYNE.

Butt's CaseUNK 7 Rep. 23 a.

Saffery v. Elgood 1 A. & E. 191.

Thomlinson v. DightonENR 10 Mod. 31.

The Queen v. The Inhabitants of Baskinstoke 14 Q. B. 611.

Digby v. AtkinsonENR 4 Camp. 275.

Lessee of Friend v. Scott Batt. 179, note.

Hyndman v. BaileyINTL 8 I. L. R. 143.

Davies v. UnderstoodENR2 H. & N. 570.

Pepper v. Newenham 4 Law Rec. 155.

Cuthberston v. LandonENR 4 H. & N. 742.

Dolny v. Iles 11 A, & e. 335.

Delaney v. FoxENR 2 C. B. N. S. 768.

James v. Landon Cro. Eliz. 36.

Cooper v. BlandyENR 1 Bing. 45.

Isgherwood v. Oldknow 3 M. & Sel. 382

Sturgeon v. WingfieldENR 15 M. & W. 224.

Webb v. Scott 7 M. & Gr. 701.

Bell v. HaydenUNK 9 I. C. L. R. 301.

Richardson v. Giffard 1 A. & E. 52.

Doe d. Martin v. WattsENR 7 T. R. 83.

Johnson v. The Churchwardens of St. Peter's 4 A. & E. 520.

Ward v. HartpoleENR 3 Bligh. 470.

Muskerry v. Chinnery Ll. & G. temp. Sug. 185.

Roe v. WardENR 1 H. Bl. 97.

Buckworth v. SimpsonENR 1 C. M. & r. 834.

Johnson v. The Churchwardnes of St. Petr's Hereford 4 A. & E. 520.

White v. M'CannUNK 1 I. C. L. R. 205.

Dolby v. Iles 11 A. & E. 335.

Maddock v. MalletUNK 12 I. C. L. R. 173.

Lease by equitable tenant — Covenant to keep premises in repair — Decstruction by fire — Tenancy from year to year — Liability under covenant.

VoL. VII.) - 2,QUITY , 487 MORROGH v. ALLEYNE. V. C. Court. Lease by equitable tenant-Covenant to keep premises in repair-Destruction by 1873. fire-Tenancy from year to year-Liability under covenant. May 9, 12. June 9. In 1832, an equitable tenant for life made a lease containing a covenant to keep the demised premises in repair, and, upon the determination of the lease by the death of the lessor, the lessee, and E., his devisee, continued in possesÂÂsion, and paid rent to R., the remainderman, without any fresh express agreeÂÂment. In 1855, R. assigned the reversion to a purchaser, who, in the following year, demised the premises to R. for a term still unexpired. The premises were burnt in 1859, and no change of tenancy had taken place up to the death of FA.. in 1871 : Hell, 1. That E.'s assets were liable, under the covenant, to the expense of rebuilding the premises ; 2. that R.'s title being merely equitable could not be relied on as a bar to his claim ; 3. that the Statute of Limitations did not apply. SUIT to administer the estate of Ellen Keatinge, who died on the 29th of April, 1871, in which, under a posting for creditors, an application was made on behalf of Robert Keatinge, and of Myles Kehoe, the surviving trustee of his settlement, that so much of their claim as related to the mill premises at Garremled should be allowed, or that provision should be made, out of the assets of Ellen Keatinge, for the repair of the premises, or for indemnifying Robert Keatinge and Myles Kehoe and the personal estate of James Keatinge, deceased, in respect of the burning or want of repair of the premises. The material facts are fully set out in the judgment. 31r. John B. Murphy, Q. C., and Mr. Mae Dermot, for Robert Keatinge. Ellen Keatinge's representatives cannot rely on the settlement of 1800, in order to show that the lease of 1832 has expired, for this would also show that Leonard Keatinge, the lessor, had no legal estate, which they are estopped from showing. Robert Keatinge is, therefore, entitled to the benefit of the covenant to keep the premises in repair, against Ellen Keatinge, who is to be THE IRISH REPORTS. [I. It. considered as having the whole term of the lease, under James Keatinge's will : Butt's Case (1); &fiery v. Elgood (2) ; Furlong's L. & T. (2nd Ed. 1869), 157. The lease must be considered as an execution of the power of appointment under the settlement of 1800. Sugden on Powers (8th Ed., 1861), 347 ; Thomlinson v. Dighton (3). Even if this is not so, still-James and Ellen Keatinge having continued to pay rent to Robert Keatinge, the remainderman-a tenancy from year to year must be implied, subÂÂject to all the covenants of the lease. Taylor on Evidence, § 108, 381 ; Furlong's L. & T. (2nd Ed. 1869), 908 ; The Queen v. the Inhabitants of Basinstoke (4) ; Digby v. Atkinson (5)...