Stewart v The Marquis of Conyngham

Judgment Date16 April 1851
Date16 April 1851
CourtRolls Court (Ireland)




Martin v. CotterUNK 9 Ir. Eq. Rep. 351.

Burnell v. BrownENR 1 Jac. & W. 168.

Seaman v. Vawdrey 16 Ves. 390.

Barton v. Lord Downes Fl. & K. 505.

Larkin v. Lord RosseUNK 10 Ir. Eq. Rep. 70.

Lyddal v. WestonENR 2 Atk. 19.

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

Spunner v. WalshUNK 10 Ir. Eq. Rep. 386.

Mayor of Congleton v. PattisonENR 10 East, 130.

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534 CHANCERY REPORTS. I 849. Rolls. STEWART v. June 6, 7. 20. THE MARQUIS OF CONY NGHAM. Dec. 1850. Jan. 29, 31. 1851. (In the Rolls.) Jan. 23. April 16. Letters patent, THE bill in this cause was filed for the specific performance of an under which ands sold by agreement for the sale of an estate called the Tyrcallen Estate. l private con_ The common interlocutory order of reference was made to the tract were held, contain- Master to inquire whether the plaintiff, the vendor, could make ed covenants by the grantee a good title to the estate, and if so, at what time he showed a -first, that he would place good title. The Master, by his report of the 3rd of May 1849, three free te nants of Eng- found the title good, and the purchaser took ten exceptions to the lish or British race, blood or report. name on the premises, each The facts of the case, the substance of the several exceptions, of whom should have and the principal arguments of the Counsel, are fully stated and fif acres, to or commented on in his Honour's judgment. onety free' nant, who should have one hundred acres for one life ; secondly, that he should have on the premises eight cullivers, or muskets, and a proper number of arms to arm eight pike-men for his defence against rebels, &c. ; thirdly, a proviso, that if he should demise any part of the premises to the mere Irish for any term exceeding forty-one years or three lives, or if he should demise the premises limited to be disposed of to any Bntish or English person, to any person being mere Irish, the Crown might reÂenter. The particulars of sale described the lands as a valuable fee-simple property, and one of the conditions of sale alluded to the letters patent. It appeared from a statute (10 Car. 1, secs. 3, c. 3,), and certain public documents therein referred to, that the covenants were those inserted in patents at the plantation of Ulster, where the lands were situate. Held, that the purchaser, having express notice of the letters patent, was bound by constructive notice of the covenants contained in them. Held also, that the first and third covenants were no longer in force, every subject of the Crown since the Union being a person of British race, name and blood, and there being no person now answering the description of mere Irish. Seruble-The second covenant could not be now enforced by the Crown. By marriage articles the husband agreed to settle out of the lands of K., in failÂure of A his daughter by a former marriage, a jointure on his intended wife, the remainder of the lands on the issue male begotten on the wife ; and in failure of issue male, on the issue female ; and in case A should survive, and the lands of K. should not be made good, that then the lands of K., which were not settled on the former marriage, should be subject to the jointure, and be settled on the eldest son of the marriage, and in failure of the said son, on the daughters of the said marriage. There was no male issue of the marriage, but female issue, B, C and D.-Held, that the lands of K. should be settled on them as tenants in common in tail. No settlement was executed, and the lands descended to A, B, C and D, subject CHANCERY REPORTS. 535 Mr. Hamilton Smythe and Mr. F. A. Fitzgerald, in support of 1849. Rolls. the exceptions. STE WART v. MARQUIS OF Mr. R. R. Warren and Mr. Christian, for the report. CONYNGHAM. Argument. The following authorities were cited upon the second, third and fourth exceptions :-Martin v. Cotter (a) ; Burnell v. Brown (b); Seaman v. Vawdrey (e); Barton v. Lord Downes (d) ; Larkin v. Lord Rosse (e); Lyddal v. Weston (f) ; Pope v. Garland (g) ; Spunner v. Walsh (h); Mayor of Congleton v. Pattison (i); Bristow v. Wood (h); Vaughan v. Magill (l); Walter v. Maunde (m); (a) 9 Ir. Eq. Rep. 351. (c) 16 Yes. 390. (e) 10 Is. Eq. Rep. 70. (g) 4 Y. & Col. Exch. 394. (i) 10 East, 130. (1) 12 Ir. Eq. Rep. 200, 207. (b) 1 Jac. & W. 168. (d) Fl. & K. 505. (f) 2 Atk. 19. (h) 10 Ir. Eq. Rep. 386. (k) 1 Col. 480. (m) 1 Jac. & W. 181. to the trusts of the articles in 1763, when B, C and D went into possession. In 1783 they levied a fine, and conveyed to a purchaser for value, and covenanted that they were seised in fee. There were several subsequent conveyances for value. In 1847 the lands were contracted to be sold.-Held, in a suit for specific performance against the purchaser, that the legal title of A and her heirs to one-fourth of the lands was barred by the Statute of Limitations, as a Court of Law would not notice the executory trusts of the articles, and the several conveyances operated as dis•seisins. Semble-The equitable title of the heir of A, on failure of issue of B, C and D, was also barred ; but Held, that as a fine created no discontinuance in equity, the title was too doubtful to he forced on the purchaser. A conveyance of all her estate, &c., was obtained from the devisee of the heir-atÂlaw of A, and was held to put an end to the objection; for although the reversion belonged to the heir of the settlor, he must trace title through the daughters, and all their right was extinguished by this conveyance and the fine. A recovery was suffered by a tenant for life, and remainderman in tail in 1781. The record stated that the tenant to the proecipe called to warranty the tenant for life, who appeared by his attorney, and warranted the tenant in tail, who appeared in perÂson.-Held, that the recovery was valid, though the record did not state a summons to warranty, nor a warrant of attorney to authorise the appearance for the tenant for life. After exceptions allowed to the Master's report of good title in a suit for specific performance, the practice is riot to discharge the purchaser, but at the request of the plaintiff to refer it back to the Master to review his report, and to inquire wheÂther a good title can be made to the lands. A purchaser relied on the memorial of a deed as creating an objection to the title, and succeeded on an exception founded on it :-Held, that he could not afterwards object that the deed itself was not produced, although there was no condition of sale to dispense with its production. The particulars of sale stated that the timber on the estate would be included in the purchase. Title was not made out to the timber on a very small portion of the lands. There being no misrepresentation, the Court referred it to the Master to inquire whether the timber on that portion was material to the...

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