Spunner v Walsh

• Jurisdiction: Ireland
• Judgment Date: 24 May 1847
• Date: 24 May 1847
• Court: Rolls Court (Ireland)

Rolls.

SPUNNER

and

WALSH.

Barnwall v. HarrisENR 1 Taunt. 430.

Doe d. Christmas v. Oliver 10 B. & Cr. 81.

Lord DownesENR Fl. & Kel. 505.

Fliht v. BoothENR 1 Bing. N. C. 370.

Taylor v. Stibbert 2 VEs. 440.

Hall v. Smith 14 VEs. 426.

Daniels v. Davidson 16 VEs. 249.

Walter v. MaundeENR 1 Jac. & W. 181.

Pope v. Garland 4 Y. & Col. 394.

Flight v. Barton 3 M. & K. 282.

Cosser v. Collinge 3 M. & K. 283

Barrand v. ArcherENR 2 Sim. 433.

Eyre v. Dolphin 2 Ball & Bea. 290.

Fildes v. HookerUNK 3 Mad. 193.

Fordyce v. Forde 4 Br. C. C. 494.

Drewe v. Hanson 6 Ves. 675.

Knatchbull v. GrueberENR 3 Mer. 124.

Martin v. CotterUNK 8 Ir. Eq. Rep. 147.

Norman v. FosterENR 1 Mod. 101.

Waring v. HoggartENR Ry. & Mood. 39.

Iggulden v. May 9 VEs. 325.

Hayes v. BickerstaffENR Vaugh. 118.

Smith v. Pocklington 1 Cr. & Jer. 445.

Vickery v. JacksonENR 2 Stark. 293.

Whatman v. GibsonENR 9 Sim. 196.

Whitton v. Peacock 2 Scott, 630.

WEbb v. RussellENR 3 T. R. 393.

Patteson v. LongENR 6 Beav. 590.

Doe d. Ambler v. Woodbridge 9 B. & Cr. 476.

Webb v. RussellENR 3 T. R. 393.

Wortley v. Gregory 2 Y. & Jer. 536.

Dignum v. Palmer Fox & Sm. 306.

Larkin v. Lord RosseUNK 10 Ir. Eq. Rep. 57.

Doe d. Ambler v. WoodbridgeENR 9 B. & C. 476.

Jones v. EdneyENR 3 Camp. 384.

Flight v. BoothENR 1 Bing. N. C. 370.

Bessonet v. RobbinsENR Sau. & Sc. 142.

Linehan v. CotterUNK 7 Ir. Eq. Rep. 176.

Martin v. CotterUNK 9 Ir. Eq. Rep. 53.

Waring v. Hoggart 1 Ry. & Moo. 39.

Barton v. Lord DownesENR Fl. & Kel. 505.

Hall v. Smith 14 Ves. 426.

Walter v. MaundeENR 1 Jac. & W. 181.

Pope v. Garland 4 Y. & Col. 394.

Pope v. Garland 4 Y. & Cpl. 394.

Flight v. Barton 3 M. & K. 282.

Prosser v. Parker 3 M. & K. 281.

Doe v. Woodbridge 9 B. & Cr. 377.

Denton v. Richmond 3 Tyr. 630.

Nouaille v. FlintENR 7 Beav. 527.

Sheppard v. Keatley 4 Tyr. 571.

Andrew v. AndrewENR 3 Sim. 390.

Doe v. OliverENR 10 B. & C. 187.

386 CASES IN EQUITY. )847 . Rolls. SPUNNER v. WALSH. April 15, 22. May 24. (In the Rolls.) The purchaser By two several leases, bearing date the 11th of December 1786, of a leasehold interest under Richard Lord Viscount Fitzwilliam demised certain lands on the a decree is east side of Merrion-square to Samuel Sproule, his executors, admi bound by no tice of all the nistrators and assigns, for the term of 150 years, to commence from covenants con- the 29th of September 1786. On .the 13th of May 1791, Samuel twined in the lease under Sproule assigned his interest in the two leases to Sir James Bond, which the pro- perry is held. Bart. By deed of the 8th of December 1794, Sir James Bond, in The omis- consideration of £500 assigned his interest to Rose Monek, subject Sion to state in ; to redemption, on payment of the said sum of £500 with interest. the rental of a leasehold sold On the 10th of May 1806, Sir James Bond demised a portion of under a de cree, a cove- the premises comprised in the leases of the 11th of December 1786, nant inthe and in the mortgage of 1794, on which two dwelling-houses had lease against the exercise o then lately been erected, and situate in Mount-street, to William particular Morton, his executors, &c., from the 25th of March then last past, trades is not misdescription for 130 years, at a rent of £20. By another lease of the same date although the . value of the Sir James Bond demised to William Morton another portion of the premises may premises, on which two other dwelling-houses had been erected, in be lessened by the covenant. Mount-street, for a like term, at a rent of £64. 13s. These leases But where the contained covenants against carrying on certain trades on the demised rental de scribed the premises, in the same words as that contained in the lease of the 12th premises as of on held for the o June 1806, hereafter mentioned, and avoiding the leases the residue of a breach of them, or reserving an additional rent, at the election of term at a yearly rent, the lessor. though by the By lease bearing date the 12th of June 1806, the said Richard breach of a covenant the term had been forfeited, or an additional rent incurred, at the election of the lessor, the Court held it misdescription, and discharged the purchaser. The rental described premises as let by one lease at one rent, whereas they were let by two leases at two separate rents, together equal to that stated in the rental. Held, that although there was misdescription it was not such as affected the title. A having a term for one hundred and fifty years, assigned it by way of mortgage in 1794, and in 1806 took a new lease for one hundred and thirty years of the same premises, his interest in which was sold under a decree in 1846. No evidence was given to show that the mortgage was paid off, or when interest had last been paid on it. Held, that the fact of the mortgage being dated in 1794, was not of itself evidence against a purchaser, that the mortgage was paid off or barred by the Statute of Limitations. The cases of Pope v. Garland (4 Y. & Col.); Jones v. Edney (3 Camp.); Flight v. Booth (1 Bing. N. C.); Barton v. Lord Downes (Fl. & gel.); Flight Y. Barton (3 M. & K..), reviewed and considered. CASES IN EQUITY. 38'1 Lord Viscount Fitzwilliam demised to Sir James Bond the preÂmises demised by the former leases, describing them as " a piece of ground situate on the south-east side of Merrion-square, in the suburbs of the city of Dublin, containing in front to the said square, to be measured from the corner of Lower Mount-street - feet in breadth, in the rere 95 feet, and in depth from front to rere 129 feet, formerly held by Samuel Sproule, and now in the possession of Sir James Bond, over and above the breadth of the area, which is to be eight feet in the front of the house that shall be built on said ground ;" to hold to the said Sir James Bond, his heirs, executors, administrators and assigns, for 130 years from the 29th of SeptemÂber then next, yielding and paying £30 a-year rent. The lease contained a covenant on the part of the lessee for himself, his heirs, executors, administrators and assigns, to build within a time speciÂfied, on the entire front of the said demised premises fronting to Merrion-square and Mount-street, good and substantial dwelling-houses, as described in said covenant, and the following covenant : -" And the said Sir James Bond for himself, his heirs, execuÂtors, administrators and assigns, doth covenant, promise and agree to and with the said Richard Lord Viscount Fitzwilliam, heirs and assigns, that neither he the said Sir James Bond, his heirs, executors, administrators or assigns, nor any of them,. during the said term of 130 years, shall employ or use any part of the front of the said houses as a shop, or follow or carry on or permit, or suffer to be followed or carried on in the said houses which are or shall be built on any part of the demised premises, the business of a tavern, alehouse, soap-boiler, chandler, baker, butcher, distiller, sugar-boiler, brewer, druggist, apothecary, tanner, skinner, lime-burner, hatter, silver-smith, copper-smith, pewterer, blacksmith, or any other offensive or noisy trade, business or proÂfession whatsoever ; and that on breach of this covenant this present demise shall be utterly void to all intents and purposes as if the same had never been made, or that otherwise at the election of the said Richard Lord Viscount Fitzwilliam, his heirs and assigns, the said Sir James Bond, his heirs, executors, administraÂtors or assigns, shall forfeit and pay unto the said Richard Lord Viscount Fitzwilliam, his heirs or assigns, from the time of the breach of this covenant or any part thereof while such trade or business shall be carried on, a further or additional yearly rent of £60 sterling, the same to be paid half yearly as the other rent, and to be recovered by action of debt, distress or otherwise as the said hereby reserved yearly rent is recoverable." The lease also contained covenants by the lessee to pay the reserved yearly rent, 388 CASES IN EQUITY. and also the additional rent if it should happen to become due; not to commit waste ; to keep the premises in repair, and to do suit at the Manor Court, and a covenant by the lessor for quiet enjoyment. Eleven houses had been built on the ground demised by this lease, three of which were in Merrion-square, seven in Lower Mount-street, and one in a lane at the rere of the other houses. On the 8th of July 1808 Sir James Bond, in consideration of £364. 3s. 4d., demised the house No. 1 Merrion-square East, exceptÂing to Lord Fitzwilliam and his heirs all royalties, to hold to Thomas Lloyd, his executors, administrators and assigns, from the 1st of May 1808, for the term of 125 years, at the rent of £100 (Irish currency). The lease contained covenants by the lessee to pay the rent, to keep the premises in repair, and a covenant by Sir James Bond that he had "in himself full right and absolute power and authority to make the present grant and demise, and hath not done any act or acts to disqualify him from making the same," and a covenant for quiet enjoyment. By an endorsement on the lease, the lessee was to be allowed certain deductions which reduced the rent to £95. 9s. Irish. The houses and premises demised by the lease of the 12th of June 1806 were set up for sale in the Master's office under the decree in tbis cause, and were described as "Lot No. 3" in the printed rental. (See opposite page.) An abstract of title was lodged in the Master's office, pursuant to the 138th General Rule. It stated the covenant in the lease against carrying on the trades specified in it ; but did not state the fact that two of the houses had been occupied for some time before as a huxter's shop and a public-house. Robert Foster Mullins became the purchaser, and declared a trust in favour of Samuel Law. The Master reported the title good, and the purchaser took fifteen exceptions to...