Samuel Dickson Biggs v Thomas Sadlier and Others

• Jurisdiction: Ireland
• Judgment Date: 15 November 1847
• Date: 15 November 1847
• Court: Equity Exchequer (Ireland)

Equity Exch.

SAMUEL DICKSON BIGGS

and

THOMAS SADLIER and others.

Egremont v CowellENR 5 Beav. 620.

Howth v. PikeENR C. & Al. 77.

Carew v. Johnston 2 Sch. & Lef. 280.

Peyton v. M'DermottUNK 1 Dru. & Wal. 198.

Glynn v. Bank of England 2 Ves. jun. 42.

Outram v. MorewoodENR 5 T. R. 121.

The King v. The Inhabiants f DebenhamENR 2 B. & Al. 185.

Rocford v. FultonUNK 7 Ir. eq. Rep. 143.

Browne v. Tighe Hayes, 158.

Kenny v. Forde Batty, 534.

Scullyv. ScullyENR C. & Al. 42.

Taylor v. Pollard Lyne App.

Sheppard v. DolanUNK 5 Ir. Eq. Rep. 6; S. C. 3 Dr. War. 1.

Chambers v. GaussenUNK 7 Ir. Eq. Rep. 575.

Brune v, RawlinsENR 7 East, 290.

Saunders v, Lord Annesley 2 Sch. & Lef. 100, 101.

Ball v. Lord Downshire Lyne, 60.

Nangle v. SmithUNK 1 Ir. eq. Rep. 137.

White v. Howth v. PikeENR C. & Al. 77.

Scully v. ScullENR C. & Al. 77, n.

Carew v. Johnston 2 Sch. & Lef. 280.

Lessee Keen v. Lord Bantry 2 hud. & Bro. 170.

Peyton v. M'DermottUNK 1 Dr. & Wal. 196.

Bullen v. Mitchell 4 Dow. P. C. 324.

Furnival v. CrewENR 3 Atk. 83.

522 CASES IN EQUITY. 1847. Equity Exch. SAMUEL DICKSON BIGGS Jan. 22, 23. THOMAS SADLIER and others. Feb. 2, 3, 4. May 31. Nov. 15. (Equity Exchequer.) On a bill filed Tin bill in this cause stated that Charles Sadlier, late of,CastIdown for a renewal, setting forth in the county of Tipperary, deceased, was, at the time of the execuÂÂarticles of de- tion of the articles thereinafter mentioned, seised as of fee in the mise of 1746, by a party lands of Belview, sufficient to enable him to make a valid lease then seised in thereof for lives, with covenant for renewal for ever ; and being so fee, and al leged to con- seised, by certain indented articles, bearing date the 5th day of tam n a cove nant for per- January 1746, and made between Charles Sadlier of the one part petual re- and John Chawner of Ballyguider of the other part, Charles Sadlier newal, but which were demised, or agreed to demise to John Chawner, his heirs, executors, lost : also, in administrators and assigns, among other lands, the towns, lands and alleged con formity there- premises described and comprised in and demised by the indenture to, a lease in of lease next thereinafter mentioned, for and during the lives and executed 1750 by the life of the persons therein named, and the survivor of them, at the grantor in the alleged arti- yearly rent of 92. 10s.; and in which articles it was averred, was des, who in contained a covenant for the perpetual renewal. the interim bad become That the plaintiff had not in his possession or power those articles tenant for life, bearing date the 5th day of January 1746, nor did he know in containing such a cove- whose custody same were, but believed they had been long since nant, and re citing articles: lost or destroyed by time or accident ; but a memorial thereof, duly also showing perfected by said John Chaw tier, was duly registered in the proper subsequent re newals succes- office for registering deeds in Ireland, the 7th day of January 1746; sively by te- and which were stated in said memorial to contain a clause of nants for life. Held, that renewal after the expiration of said lives thereinbefore mentioned ; the memorial provided said Chawner, his heirs, executors, administrators and of the articles from the Re- assigns, should, within six calendar months, to be computed from gistry-office, though not ex ecuted by the grantor, was admissible in evidence against those claiming under him as pnrchasers, both of the execution of such lost articles and also of their contents. Also, that the successive renewals by subsequent tenants for life were evidence in support of the memorial, against the remainderman, of the execution of such alleged articles. Held also, that an agreement contained in a memorial to demise certain lands for three lives, " with a clause of renewal, provided the lessee, within six calendar months from the death of the last of the said three lives, should nominate such life or lives as he would have inserted in any lease to be made thereof, and paying, as well all rent due for the half year after the fall of such life, as the sum of 11. 7s. 6d. for renewing or adding such life or lives for ever," is an agreement or covenant for perÂÂpetual renewal. CASES IN EQUITY. 523 the death of the last of said three lives, nominate and appoint such life or lives as he or they would have inserted in any lease to be made thereof; and paying as well all rent and arrears that should be due for the half year after the fall of such life, as the sum of 11. 7s. 6d. for adding or renewing such life or lives for ever; as by the said original articles, or a counterpart thereof, in the possession of the defendant Thomas Sadlier, had plaintiff same to produce, or by said memorial, or an attested copy thereof, when produced and proved, would fully appear. That by indenture of lease and release, bearing date the 2nd day of March 1750, and made between Charles Sadlier of the one part and John Chawner of the other part, reciting that Charles Sadlier, by articles bearing date the 6th day of February 1746 (being the same articles thereinbefore mentioned, and by mistake therein recited as bearing date the 5th day of February 1746), had demised to John Chawner and his heirs the lands, &c., for and during the three lives therein named, and the longest liver of them, at the yearly rent of 92. 10s., with a covenant to renew the same for ever, on payment of 11. 7s. 6d. for renewing same on the fall of every life, within six months next after the fall of each life ; and that it was thereby further agreed that leases should be perfected at the request ,of either party ; reciting that the lease of Colonel Butler's thirty-seven acres had expired, and that the rents agreed upon between the parties to the indenture then in recital, for the remainder of the lands then in the possession of John Chawner, amounted to 90. 8s. yearly, over and above the rent of Colonel Butler's acres : It was witnessed that Charles Sadlier, in pursuance of the indented articles and for the considerations therein mentioned, demised unto John Chawner, his heirs and assigns, the lands of Ballyguider, KnockÂÂanalea and Gortmungagh, which the plaintiff averred to be a subdenomination of some of the townslauds comprised in the articles of the 5th of January 1746, for three lives, at the rent of 90. with covenant for perpetual renewal, in these words :-" That upon the death or failure of the aforesaid life or lives, or any or either of them, and upon the said John Chawner, his heirs or assigns, first paying or causing to be paid unto the said Charles Sadlier, his heirs or assigns, the sum of 11. 7s. 6d. then currency, over and above the annual rent thereinbefore reserved, within the space of six calendar months next and immediately after the death and failure of such life, upon the nomination of the life of any other person by the said John Chawner, his heirs or assigns, within the said six calendar months, to the said Charles Sadlier, his heirs or assigns, to be put or inserted in the place or stead of the person so happen 524 CASES IN EQUITY. ing first to die as aforesaid ; that then the said Charles Sadlier, his heirs or assigns, should and would within the said six calendar months from the death of such person so happening first to die as aforesaid, add and insert to the time and term of said lease the life of such person so to be nominated in the place and stead of the person so happening first to die as aforesaid, which life so to be added and inserted was to be indorsed on said lease, or to be written in a deed, label or parchment to be affixed thereto for that purpose, or in a separate deed or writing, as the said John Chawner, his heirs or assigns, should think most proper and convenient, declaring the life so added in lieu of the life so falling to be, -with the life and lives then in being, the three lives during which the said estate should be then to continue ; and so in like manner from time to time successively for ever thereafter, on the failure of every other several life or lives in said lease then nominated, or thereafter to be successively nominated as aforesaid, and upon the like payment of the sum of 11. 7s. 6d., then currency ; and upon the like nomiÂÂnation of any other life successively to be added in lieu of every several life so failing as aforesaid, within the space of six calendar months as aforesaid ; that the said Charles Sadlier, his heirs or assigns, should and would, within the said six calendar months next after the failure of every other such several life so to be nominated as aforesaid, add and insert to the time and term of said lease, from time to time for ever, the several life or lives of such person or perÂÂsons to be nominated in the place and stead of the life or lives of the several person or persons so successively happening to die as aforeÂÂsaid." This deed was duly registered. That Benjamin Biggs, in whom the estate and interest of John Chawner in said demised premises was then vested, exhibited his petition in the High Court of Chancery in Ireland on the 8th day of February 1766, against the Rev. Ralph Grattan and Thomas Sadlier, a minor (in whom the reversion in said demised premises was then vested by the said Ralph Grattan, his guardian), stating said indenture of lease to contain a covenant on the part of the lessor and his heirs to renew said lease from time to time for ever, and praying that the petitioner should be declared entitled to a renewal of said indenture of lease. That several proceedings were had upon that petition ; and that finally Ralph Grattan, in pursuance of an order made on the petition, executed a renewal to Benjamin Biggs, bearing date the 8th day of March 1770. That some of the lives in the last-mentioned renewal having dropped, Thomas Biggs (in whom the estate and interest of John CASES IN EQUITY. 525 Chawner was then vested), on the 28th day...