Thomas Kent and Aquila Kent v Sadleir Stoney and Others

• Jurisdiction: Ireland
• Judgment Date: 12 January 1859
• Date: 12 January 1859
• Court: Rolls Court (Ireland)

Rolls.

THOMAS KENT and AQUILA KENT

and

SADLEIR STONEY and others.

Jones v. Kearney 1 Dr. & War. 159.

Sibourne v. PowelENR 2 Vern. 11.

Morse v. FaulknerENR 1 Anst. 11.

Noel v. BewleyENR 3 Sim. 103.

Smith v. Osborne 6 H. L. Cas. 390.

Taylor v. Stibbert 2 Ves. Jun. 437.

Steele v. MitchellUNK 3 Ir. Eq. Rep. 1.

Moore v. Butler 2 Sch. & Lef. 249.

Birmingham v. Kirwan 2 Sch. & Lef. 242.

Bacon v. CorlyENR 4 De G. & Sm. 261.

Green v. GreenENR 2 Mer. 86.

Dillon v. Parker 1 Swanst. 394, note.

O'Fay v. BurkeUNK 8 Ir. Ch. Rep. 225, 511.

Shannon v. Bradstreet 1 Sch. & Lef. 52.

Taylor v. Stibbert Ubi sup.

Steele v. Mitchell Ubi sup.

ENR See the notes to Walton v. Waterhouse (2 Wms. Saund. 415).

ENR 3 Mer. 196–8.

CHANCERY REPORTS. 249: 1858. Rolls. THOMAS KENT and AQUILA KENT v. SADLEIR STONEY and others. which the question of the petitioners' right to a renewal were shortly these : In 1769, Thomas Johnston was seised in fee of the mill and mill-house of Ballyknockane, with a parcel of land usually held therewith, containing about three acres. He was also seised in fee of another piece of ground, part of Killeen, adjoining the stream or waterÂcourse of the mill of Ballyknockane. By a lease bearing date the 4th of November 1769, Thomas Johnston demised to John Hill, his heirs and assigns, the mill and mill-house and lands of Ballyknockane, for three lives, with a covenant for perpetual renewal ; and by a lease bearing date the 5th of November 1772, the said Thomas Johnston demised to the said John Hill, his heirs and assigns, the said part of Killeen, for two lives, the survivor of whom was one Daniel Maher. In 1788, the lessee's interest in both leases had become vested in William Hill, the son of John Hill ; and by an indenture bearing date the 25th of March 1788, William Hill demised to Thomas Kent, his heirs and assigns, the premises comprised in the two leases of 1769 and 1772, for the lives of the said Thomas Kent, Jane Kent his wife, and Philip Kent his son, and for and during the natural life and lives of all such other person or persons as should from 'time to time for ever thereafter be added thereunto, by virtue 250 CHANCERY REPORTS. and in pursuance of a covenant for perpetual renewal therein contained. The tease 'contained a covenant for perpetual renewal, and a covenant for quiet enjoyment. Thomas Kent entered into possession of the premises demised by the lease of 1788, and so continued until his death, which occurred in 1821. The petitioners were entitled to a rentcharge on the estate and interest of the lessee, which was vested in the respondents Margaret Tuohey and Rose Tuohey. The title of the petitioners and of the said respondents is stated in his Honor's judgment,, infra, pp. 254, 255. _ On the 5th of December 1793, William Hill conveyed all his estate and interest in the premises demised by the leases of the 4th of November 1769, and the 5th of November 1772, to Thomas Stoney, his heirs and assigns, to hold the lands comprised in the lease of 1769, for the lives of the persons named in the said Lease of 1769, and for the lives and life of every other person or persons who should for ever thereafter be added, by virtue of the covenant for perpetual renewal therein contained, and to hold the lands comÂprised in the lease of 1772 for the lives of the persons or person then in being as lives named in the lease of 1772. Thomas Stoney received the rent reserved by the lease of 1788, until his death in 1825. The reversion in fee of Thomas Johnston in both sets of premises had, in 1802, become vested by devise in Robert Johnston ; and by his will, bearing date the 12th of August 1802, he devised it in fee to the said Thomas Stoney. Robert Johnston died in the same year 1802. By a settlement executed on the marriage of Thomas Stoney, on the 13th of February 1819, he conveyed his estate in the lands comprised in the lease of 1788 to trustees, upon certain trusts under which the respondent Sadleir Stoney derived his title. The trusts of the settlement, and some other circumstances which it is not necessary to repeat, are stated in the judgment, infra, pp. 256, 257. Daniel Maher, the surviving life of the lease of 1772, died in 1809. It was not proved that his death had ever been communiÂcated to Thomas Stoney, or to any person deriving under the settlement, until 1830. CHANCERY REPORTS. 251 Mr. Lawson and Mr. William Smith, for the petitioners. When the lease of 1788 was made, William Hill was seised of the lands of Killeen, for two lives, and had no title by means of. which he could perform his covenant for perpetual renewal. But a personal equity to perform that covenant attached itself to him, and to all those deriving under him, or who derived any benefit under the lease. If William Hill had afterwards acquired the fee, he would have been bound to grant a renewal, in pursuance of hi* covenant ; for, if a man contracts to convey, and has no title, and he afterwards acquires a title, he is bound to convey : Jones v. Kearney (a); Sibourne v. Powel (b) ; Morse v. Faulkner (e): Noel v. Bewley (d); Smith v. Osborne (e) : so would all deriving an estate under him. It may be said that the respondent does not derive under William Hill. But the parties deriving under the settlement of 1819 are purchasers with notice of the equity which attached itself to William Hill, and are bound by it Taylor v. Stibbert (f) ; Steele v. Mitchell (g): and Thomas Stoney might have repudiated the lease when the lives dropped ; but instead of doing so, he adopted the lease, by receiving the rent, and they cannot now repudiate the obligations which it imposed on the lessor, among others, the covenant to renew and the covenant for quiet enjoyÂment : Moore v. Butler (h); Birmingham v. Kirwan (z) ; Bacon v. Coyly (k) ; Green v. Green (l); Dillon v. Parker (m). On the question of alleged improvements on the lands, they cited O'Fay v. Burke (n); Shannon v. Bradstreet (o). Mr. Brewster, Mr. Sullivan and Mr. W. Ryan, for the respondÂent Sadleir Stoney. The respondent Sadleir Stoney does not derive any estate from (a) 1 Dr. & War. 159. (c) 1 Anat. 11. (e) 6 H. L. Cas. 390. (g) 3 Ir. Eq. Rep. 1. (i) 2 Sch. & Lef. 242. (I) 2 Mar. 86. (n) 8 Ir. Ch. Rep. 225, 511. (b) 2 Vern. 11. (d) 3 Sim. 103. (f) 2 Ves. jun. 437. (h) 2 Sch. & Lef. 249. (k) 4 De G. & Sm. 261. (m) 1 Swanst. 394, note. (o) 1 Sch. & Lef. 52. 252 CHANCERY REPORTS. William Hill, the lessor of the lease of 1788, and he is therefore unaffected by the personal equity which it is now sought to enforce against him. The covenant to renew ran with the reversion to which...