Redington, Vendor; Browne, Purchaser

• Jurisdiction: Ireland
• Judgment Date: 06 May 1893
• Date: 06 May 1893
• Court: Land Commission (Ireland)

Land Com.

Before BEWLEY, J.

REDINGTON, VENDOR;

BROWNE, PURCHASER

London and South Western Railway v. Gomm 20 Ch. Div. 562.

London and Westminster Loan and Discount Company, Limited, v. DrakeENR 6 C. B. (N. S.) 798.

Hare v. BurgesENR 4 K. & J. 45.

Pollock v. Booth Ir. R. 9 Eq. 229. Judgment of Sullivan, M. R. at p. 243, et seq.

London and South Western Railway Company v. Gomm 20 Ch. Div. 562.

Hope v. Mayor, & c., of Gloucester 7 D. M. & G. 647.

Hodges v. ClarkeDLTR 17 Ir. L. T. R. 83.

Perrott v. DennisUNK 18 L. R. Ir. 29.

Hope v. Mayor, & c., of Gloucester 7 D. M. & G. 647.

London and South Western Railway Company v. Gomm. 20 Ch. Div. 562, at p. 581.

Curtis v. LukinENR 5 Beav. 147.

Merlin v. BlagraveENR 25 Beav. 125.

Boughton v. JamesENRENR 1 Coll. C. C. 26; 1 H. L. C. 406.

Hare v. BurgesENR 4 K. & J. 45.

The London and South Western Railway Co. v. Gomm 20 Ch. Div. 562, at p. 579.

Gilbertson v. RichardsENR 4 H. N. 277; 5 H. & N. 453.

The Birmingham Canal Co. v. Cartwright 11 Ch. Div. 421.

The London and South Western Railway Co. v. Gomm 20. Ch. Div. 562.

Lease for lives or ninety-nine years Agreement for reversionary lease for lives, with convenant for perpetual renewal

VOL. XXXII.] 1. B. & EL DIVISIONS. 347 they must sell in some one of the ways known to the law by which Appeal. charity property, -otherwise restrained from alienation, can be 1893. sold. In re COLLEGE OF BARRY, L.J. P1CYSICIANS. I concur with the Lord Chancellor and Lord Justice FitzGibbon, and I think the decision of O'Hagan, J., is right. I confess that if Mr. Price could have satisfied me that his proceedings had reached such a position before the passing of the Act of 1891 that he could have carried it out without calling in aid that Act of Parliament, I should have had considerable doubt in holding that his clients were not entitled to rely on the definition of landlord in the section of the Act of 1887, which incorporates the section of the Act of 1870. But I am of opinion' that he must rely on the Act of 1891, and relying on it he must be bound by its proÂÂvisions. Solicitor for the appellants : Stephen Gordon 8f Son. Solicitor for the respondents : Maxwell Co. R. D. M. REDINGTON, VENDOR; BROWNE, PURCHASER (1). Land Com. 1893. Lease for lives or ninety-nine years-Agreement for reversionary lease for -April 22. lives, with covenant for perpetual renewal-Rule against perpetuities. May 6. By lease dated. 1st May, 1798, lands were demised. to D for three lives, and. the survivors and survivor of them, and if the said lives and the survivor of them should die before the determination of ninety-nine years from the date of the lease, for the residue of that term. By deed dated 29th June, 1814, the reversioner, in consideration of 60, agreed with E 11 that he, his heirs and assigns would, so soon as the said lives and years should determine and expire, grant to E 11, or to his heirs and assigns by lease, whenever thereÂÂafter applied to for that purpose, portion of said lands, such lease to be for three lives, and to contain a covenant for perpetual renewal. Held, that although it was competent for the reversioner in 1814 to agree (1) Before BEWLEY, J. VOL. XXXII. 2 B LAW REPORTS (IRELAND). [L. It. I. to execute a lease for a definite ascertained term, to commence so soon as the lease to D expired, it was necessary that the interest to be taken should be capable of ascertainment within the period prescribed by the rule against perpetuities ; that as the lives in this case could not be nominated until after the term of ninety-nine years had expired, the nature and extent of the interest to be taken could not be ascertained within the prescribed period, that the lease would not be less open to objection by reason of the covenant for perpetual renewal, and that the agreement could not be enforced. The law relating to the rule against perpetuities as affecting agreements for future leases considered. QUESTION of law arising under the Land Purchase (Ireland) Acts, 1870 to 1891, and submitted by Mr. Commissioner Lynch for the hearing and determination of the Judicial Commissioner. The case came before Mr. Commissioner Lynch on an appliÂÂcation by Henry G. Hinson, that the vesting order to John Browne, one of the purchasing tenants on the estate of Christopher Talbot Redington, be set aside, or that said vesting order might be executed subject to the said Henry G. Hinson's right under an indenture of agreement, dated 29th June, 1814, to a reversionary lease of the land agreed to be sold to the said John Browne. The facts are fully set out in the judgment. Cherry, for Henry G. Hinson : The agreement of 1814 gave Ephraim Hewit an interest in land : London and South Western Railway v. Gomm (1) ; it came within 6 Anne, c. 2 ; it was duly registered, and has priority over the conveyance of 1818 to Walter Redmond. The fixing of the fair rents does not affect the rights of Henry G. Hinson under this agreement. The surrender by Michael Doyle in 1816 could not affect the rights of Ephraim Hewit, and those claiming through him, under the agreement: London and Westminster Loan and Discount Company, Limited, v. Drake (2). The agreement is good as against assignees, and does not violate the rule against perpetuities : Hare v. Burges (3) ; Marsden on Perpetuities, 15, 57 ; Lewis on Perpetuity, 611. Agreements and covenants to renew leases have always been treated as exceptions. (1) 20 Ch. Div. 562. (2) 6 C. B. (N. S.) 798. (3) 4 K. & J. 45. Vol.. XXXII.] Q. B. & EL DIVISIONS. to the rule against perpetuities : Pollock v. Booth (1) ; London and South Western Railway Company T. Gomm (2) (p. 579). The result of allowing the vendor's contention would be that nearly all reversionary leases would be invalid. Matheson, Q.C., for C. T. Redington : The agreement of 1814 is void, as tending to a perpetuity : London and South Western Railway Company v. Gomm (2) ; Hope v. Mayor, 8cc., of Gloucester (3). In Pollock v. Booth (1), the Master of the Rolls was able to take the case out of the principle of Hope v. Mayor, 8 cc., of Gloucester (3), by coming to the conclusion that the covenant was really only a covenant for renewal, worded in a peculiar way, and thus within the well recognised distinction that renewable leases are an exception to the general rule against perpetuities. The principle upon which this exception rests is that covenants for perpetual renewal run with the land ; they are contained in the lease which is covenanted to be renewed, and are made with the lessee of the renewable interest. This case is not in any sense within that exception. The...