La Touche v Hutton

• Jurisdiction: Ireland
• Judgment Date: 11 February 1875
• Date: 11 February 1875
• Court: Chancery Division (Ireland)

V. C. Court.

LA TOUCHE

and

HUTTON.

Earl of Egremont v. Pulman 3 Q. B. 622.

Malcomson v. O'DeaENR 10 H. L. C. 593, 614.

Daniel v. Coulthred 7 A. & E. 235, 239.

Cathrow v. EadeENR 4 De G. & Sm. 527.

Garland v. CopeUNK 11 Ir. L. R. 514, 534.

Biggs v. SadlierENR 10 Ir. Eq. R. 522. [S. C. on App. 4 H. L. C. 435.]

Peyton v. M'Dermott 1 D. & Wal. 198.

Beardman v. WilsonELR L. R. 4 C. P. 57.

Fitzgerald v. O'Connell 1 J. & L. 134, 152.

Sadlier v. BiggsENR 4 H. L. C. 435.

Pluck v. Digges 5 Bligh, N. R. 31.

Porter v. FrenchUNK 9 Ir. L. R. 514.

Harvey v. CookeENR 4 Russ. 34.

Evidence — Statements against proprietary interest — Secondary evidence of lost lease — Suit for renewal — Suit defective for want of parties —

166 THE IRISH REPORTS. V. C. Court. LA TOUCHE v. MITTON:. 1875. Evidence-Statements against proprietary interest-Secondary evidence of lost Feb. 10, 11. lease-Suit for renewal-Suit defective for want of parties-100th General' Order. A., by a deed of 1786, purporting to be a lease of lands for lives renewable, covenanted with B., the grantee, to renew, from time to time, the lease by-which he (the grantor) held from C., and, toties quoties, to renew to B. ; the deed of 1786 operated as an assignment from A. to B., who was in possession. and paid the reserved rent to C. in a suit for a renewal by B. against the representative of C., that the statements in the covenant by A. in the deed of 1786, amounting to a declaration by him against his proprietary interest, were, after his death, secondary evidence, against the representative of C., that C. had granted to A. a lease for lives renewable ; and that the represenÂÂtative of C. was bound to renew to B. as assignee of A. To make a declaration against proprietary interest in lands evidence after-the death of the declarant, he must have been-at the time in actual possession; and, Semble, the fact of his making a lease of the lands is, of itself, as an act of" ownership, sufficient evidence of his being in possession, so as to render admisÂÂsible in. evidence, against third parties, a declaration against his proprietary interest contained in that lease. Under the 100th General Order, a defect for want of parties can be cured at the hearing, by the Plaintiff giving an undertaking to give full effect to the rights of absent parties, those rights being such as do not affect the rights of the Defendant. BILL praying for a declaration that the Plaintiff was entiÂÂtled to have a renewal of a lost lease, which he alleged contained_ a covenant for perpetual renewal ; and he made out his title as follows :- By lease of the 10th July, 1764, Parsons Hoey demised part of the lands of the Downs, in the county of Wicklow, to James Anderson for lives, with a covenant for perpetual renewal ; and, by a renewal dated the 2nd of June, 1774, Parsons Hoey released and confirmed the premises to James Anderson, for the lives of P. Hoey, George Hoey, and the Prince of Wales. In 1772, James Anderson devised the premises to Mary Anderson. for life, remainder to Mary Wren for life, remainder to Robert, YoL. IX.] EQUITY SERIES. 167 Hutton in fee. The bill alleged that, previously to the 13th of V. C. Court. March, 1786, the three devisees demised the premises to persons of 1875. the name of Dalton and Eustace, for the same three lives as in the LA. TOUCHE renewal of 1774, at the rent of £34 2s. 6d., with covenant for perÂÂpetual renewal. This deed was not forthcoming, and for evidence of it the Plaintiff relied upon the statements contained in a deed of the 13th of March, 1786, whereby Dalton and Eustace demised to John Jameson, for the same three lives as in the renewal of 1774, all the demised premises (except a portion reserved to Mary Wren during her life), at the rent of £34 2s. 6d., and Dalton and Eustace thereby covenanted that they would from time to time renew the lease by which they held from Mary Anderson, Mary Wren, and Robert Hutton, and as often renew the lease from themselves to John Jameson. By deed of the 10th December, 1788, John Jameson demised all the premises (except the part reserved to Mary Wren) to Peter La Touche, for the same three lives as in the renewal of 1774, with covenant for perpetual renewal, at the rent of £34 2s. 6d., which, down to 1794, was paid to Mary Wren, and after that date to Joseph Hutton. The interest under the last-mentioned lease became vested in the Plaintiff, who contended that the lost lease, the lease of 13th March, 1786, to John Jameson, and the lease of 10th December, 1788, to Peter La Touche, being for the same three lives as the reÂÂnewal of 1774, and therefore operating as assignments, Peter La Touche became the immediate tenant of the devisees of James . Anderson, whose interest under the original lease of 1764 was vested in the Defendant, who was also the owner of the reversion expectant upon the determination of that lease. The Plaintiff also contended that the statements and covenants in the deed of the 13th of March, 1786, being against the interest of Dalton and Eustace, the grantors, were evidence of the lost lease from the devisees of James Anderson to Dalton and Eustace. Mr. Law, Q. C., Mr. Richey, Q. C...