White v Baylor

• Jurisdiction: Ireland
• Judgment Date: 02 December 1846
• Date: 02 December 1846
• Court: Rolls Court (Ireland)

Rolls.

WHITE

and

BAYLOR.

Lewis v. Madocks 8 Ves. 150.

Randall v. Willis 5 Ves. 262.

Jones v. MartinENR 3 Anstr. 882; S. C. Ves. 266, n.

Harnett v. Yielding 2 Sch. & Lef. 549.

Ress v. LloydENR Wight. 123.

Doe v. ClevelandENR 9 B. & C. 864.

Jervis v. Duke of Northumberland Referred to in 1 Dru. & War. 492.

Jackson JacksonENRENR 1 Vern. 196; Fitzg. 146.

chester v. Willan 2 Saun. 96, a.

Sheppard v. KeatleyUNK 4 Tyrw. 571.

Jack v. ReillyENR 2 Hud. & Brooke, 301.

Clock-maker's Company 1 Brown's Chau. Ca. 81.

Lewis v. MadocksENR 8 Ves. 150, and 17 Ves. 48

Braddish v. Braddish 2 Ball & Bea. 479.

Falkner v. O'Brien 2 Ball & Bea. 206.

Archbishop of YorkENR 1 My. & Cr. 556.

Robinson v. M'DonellENR 5 M. & S. 228.

Curtis v. AuberENR 1 Jac. & W. 526.

Duglas v. RussellENR 4 Sim. 524; S. C. 1 Myl. & Kee. 448.

The Duke of Wellington 2 Russ. & Myl. 35.

Lyster v. BurroughsUNK 1 Dru. & Wal. 150.

CASES IN EQUITY. 43 1846. Rota. WHITE v. BAYLOR. Nov. IS, 14, Dee. 2. Tars cause came on to be heard upon exceptions by the plaintiff to By deed of 1809 between the Master's report of bad title of part of the lands of Boherboy, A and B, De- situate in the county of Cork, which had been sold to Robert Briscoe, pnty Bmasterarrack- Gene Esq., under the decree in this cause. ml, reciting that a certain By deed bearing date the 20th of July 1809, and made between part of A's ee. John Anderson of the one part, and Major General Quin John tate had been fixed on for Freeman, Deputy Barrack-master General to the Forces in Ireland, the site of bar- and one of the Commissioners and Overseers of the Barracks, racks, and that it was and other public works in Ireland, on behalf of his Majesty necessary that a be o King George the Third, of the other part ; after reciting the privliilegerty for 36 G. 3, c. 22, which authorised the Commissioners of Barracks to the troops for exercising take grants of lands for the purposes stated in the Act, and reciting should be that it was necessary to build additional barracks at Fermoy, which granted on another part ; would require about nine acres of land, and that a part of the A conveyed nin acs lands of Boherboy, containing about nine acres and eleven perches, ever r forre thefor part of the estate of the said John Anderson, had been fixed site of the bar- rack, and also upon for that purpose, and reciting, " that it was also necessary, granted, let that a liberty or privilege for his Majesty's troops for exercising and demised unto B one should be granted and secured, on another piece or parcel of hundred acres, ground, situate to the northward of said plot of nine acres, and to hold to him and his succes containing about one hundred and ten acres, part of said lands sors for ever, of Boherboy, or on some other proper piece of ground, equally con- purpose for the venient thereto, in trust for his Majesty, his heirs and successors for cising thereon, in trust for his Majesty, his heirs and successors, reserving a rent of L150. There was a covenant for the payment of the rent, and a power to the lessor to resume the hundred acres, upon giving another piece of ground in lieu of it. After the signatures, it was declared in the attestation clause, that nothing in the deed should be construed to deprive A or his heirs of the fee and inheritance of the full and free enjoyment and possession of the one hundred acres, "the liberty of exercising thereon being only intended to be granted." A in 1818 demised the hundred acres to C for lives renewable for ever, subject to the perpetual right of exercising thereon, &c. In 1823 C, being a trader, upon his marriage covenanted that whatever estate or property, real or perÂÂsonal, should be charged with an annuity for his wife, in the event of her surviving. C died in 1842, leaving his widow still surviving. C's interest in the lease was sold under the decree, and the rental stated "the lands were subject to a perpetual right to be used by the military as an exercise ground." Held, confirming the Master's report of bad title, that the deed of 1809 was not a mere grant of an easement in the hundred acres, but was an absolute conveyance of the land, the fee of which was, by the 7 G. 3, c. 6, vested in the Crown, without livery of seisin. Though a conveyance to one and his successors/gives but a life estate, and in conÂÂveyances operating under the Statute of Uses, the seisin must be commensurate with the use, yet Semble this does not apply to a case of trust. Held also, that it being doubtful whether, upon the true construction of the covenant in the deed of 1823, the lands were bound thereby, the Court would not compt the purchaser to take a title subject to so serious a question, 44 CASES IN EQUITY. 1846. ever;" John Anderson conveyed the nine acres and eleven perches Rolls. to General Freeman and his successors, to hold to him and his wRETE successors, and his and their heirs and assigns for ever in trust, and v. to and for the only proper use and behoof of his Majesty, his heirs BAYLOR. and successors for ever, yielding and paying the rent of one pepper &denied. corn. The deed then contained the following testatum :-"And this indenture further witnessed' that the said John Anderson, in purÂÂsuance and further execution of the agreement aforesaid, and for the better accommodation of his Majesty's troops from time to time to be quartered in the barrack of, or contiguous to the said town, with sufficient, proper and convenient piece or parcel of ground for the purpose of exercising, hath granted, let and demised, and by these presents doth grant, let and demise unto the said Quin John Freeman a piece or parcel of ground, other part of the said lands of Boherboy, containing one hundred and ten acres, as the same is particularly figured and described in the map or terchart hereunto annexed: to have and to hold the said last-mentioned piece or plot of ground unto the said Quin John Freeman and his successors, Deputy Barrack-masters General of Ireland, or other chief or chiefs of the barrack department in Ireland, for the purpose only of exercising thereon, in trust for his said Majesty, his heirs and successors for ever; saving and excepting and subject to the proviÂÂsoes and conditions hereinafter reserved and mentioned ; he the said Quin John Freeman and his successors yielding and paying therefore and thereout on behalf of his Majesty, his heirs and successors for ever, to the said John Anderson, his heirs and assigns, the rent of 150," &c. Provided always that it should be lawful for the said John Anderson, his heirs and assigns, after the end of five years, to re-assume the full, quiet. and peaceable possession of the said last-mentioned piece or parcel of ground, he or they first giving unto the said Quin John Freeman, or his successors, Deputy Barrack-masters General of Ireland, &c., in trust for his Majesty, his heirs and successors, another piece or parcel of good dry upland ground in lieu thereof, free from rocks or other obstructions, to contain at least one hundred acres of land equally convenient to the barrack, " for the purpose only of exercising thereon ;" and thereupon the said Quin John Freeman should quit and surrender the said last-mentioned premises (i. e. the ore hundred and ten acres), and the quiet and peaceable possession thereof to the said John Anderson, his heirs and assigns, and shall immediately thereupon take possession of and occupy, for the said purpose of exercising only, the said other piece or parcel of ground so to be allotted and let out as aforesaid, and CASES IN EQUITY. 45 shall pay for the same, while in possession thereof, the same rent of 150 a-year. The deed then contained a covenant for payment of the rent, and a covenant that General Quin John Freeman and his successors "should...