Sheppard v Doolan

• Jurisdiction: Ireland
• Judgment Date: 12 November 1842
• Date: 03 November 1842
• Court: Court of Chancery (Ireland)

(Chancery.)

Sheppard

and

Doolan.

Chancery.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

A habendum in a lease for lives, “to hold for the lives of A. and B., or the survivor of them, or whatever life or lives shall for ever or hereafter he nominated or appointed, paying a pepper-corn fine, if demanded,” amounts to a covenant for perpetual renewal.

Where the purchaser of an interest sold under a decree of the Court, acquires by that means a knowledge of a defect in the title to that interest, and afterwards buys up the estate of the person interested in taking advantage of that defect, the Court will not allow him to rely on the doctrine that a purchaser is not obliged to take a doubtful title, in support of an objection to the title founded on that defect.

Quære—Whether if the objection were valid, the Court would allow him to rely on it?

This was an appeal from the decision of his Honor the late Master of the Rolls, reported in the fourth volume of these Reports, p. 654, overruling exceptions taken to the Master's report, which found that a good title could not be made to the lands sold under the decree.

The original lease and the subsequent renewal will be found fully stated in the report of the case at the Rolls, and the only alteration necessary to make in that statement is, that the word “or” should be inserted in the habendum of the original lease between the words “ever” and “hereafter,” so that the habendum will then run—“to hold for the lives and life of Joseph Burton and Elizabeth Burton, or the longest liver of them, or whatever life or lives shall for ever or hereafter be added or inserted on the back of this indenture, or a label affixed thereto.”

The question principally discussed was the construction of the original lease, viz., whether it contained a covenant for perpetual renewal, or not; but it was stated by the Counsel for the appellant, that the purchaser was himself the head landlord, entitled to the reversion immediately expectant upon the lease of 1777, and that he had purchased that reversion after he had bought the interest under the lease of 1777, and after he was aware of the defect in the title to that interest, arising from the peculiar frame of the covenant for renewal. It was also stated that the reversion was sold by the former owner, as if it were subject to a covenant for perpetual renewal of the lease of 1777.

These facts did not appear upon any of the documents before the Court, and the Counsel for the purchaser stated, that they were not aware whether the facts stated, on the other side existed or not.

Mr. W. Brooke, Q. C. and Mr. Monahan, Q. C., for the appellant.

It is clear upon all the authorities, that no technical words are necessary to make a covenant; any words in an instrument under seal which show an agreement to do an act, amount to a covenant to do that act. Stevenson'scase (a); Pordage v. Cole (b); Furnival v. Crewe (c). The words in the instrument in question therefore amount to a covenant

for renewal to some extent; and if that be so, where is the limit at which the right of renewal is to cease? In Taylor v. Pollard (a), a covenant for perpetual renewal was implied from the habendum, although there was an express covenant for renewal which was clearly not perpetual. In Ball v. Lord Downshire (b), although the covenant for renewal was clearly not a perpetual covenant, yet as there had been successive renewals for a long period of time, during which the parties had acted upon it as a perpetual covenant, the Lord Chancellor (Lord Manners) said, the acts of the parties might afford ground for a presumption of what was the agreement between the parties, and he retained the bill for a year, with liberty for the plaintiffs to bring an action upon the covenant. That case shows how far the Courts have gone in sustaining titles of this description, where there has been long possession and continued dealing with the interest under the lease, as if it were renewable for ever. In the present case there is nothing in the...