Wisdom v The Corporation of Dublin

• Jurisdiction: Ireland
• Judgment Date: 18 December 1851
• Date: 18 December 1851
• Court: High Court of Chancery (Ireland)

Chancery.

WISDOM

and

THE CORPORATION OF DUBLIN.

Anderson v. Lyne on RenewalsENR 2 Bro. P. C. 256.

Lennon Napper 2 Sch. & Lef. 682.

Phillips v. Lord Kensington 5 Dow. Parl. Cas. 61.

Fitzgerald v. VicarsUNK 5 Dru. & Wal. 298.

Shore v. Lord Darnley Lyne's App., case, 6.

Harries v. BryantENR 4 Russ. 89.

M'Alpine v. SwiftUNK 1 Ball & B. 285.

M'Alpine v. SwiftUNK 1 Ball & B. 285; et vide Kane v. Hamilton, 1 Ridg. P. C. 180.

Allen v. Hilton 1 Fonbl. On Eq. 425, n., 432.

Maxwell v. WardENRENRENR M'CL 458; S. C. 11 Price, 3; 13 Price, 674.

Lord Palmerston v. The Corporation of Dublin Lyne on Reewals, App., case 20.

Sweet v. AndersonENR 2 Bro. P. C. 256.

Firman v. Lord Ormonde Beatty, 347.

Eaton v. Lyon 3 Ves. 690.

Harries v. BryantENR 4 Russ. 89, 91.

Allen v. Hilton 1 Fonbl. on Eq. 425, n., 432.

306 CHANCERY REPORTS. 1851. Chancery. WISDOM v. THE CORPORATION OF DUBLIN.* Nov. 27. Dec. 18. A lease (of IN this case the cause petition was filed on the 14th of April 1851, lands) made in 1778, for and it prayed that the respondents, the Lord Mayor, Aldermen and three lives, Burgesses of the city of Dublin, might be ordered to execute to the contained a covenant for petitioner John Wisdom a renewal of the lease of the 6th of Novem- renewal (on payment of a ber 1764, pursuant to the provisions and covenants of that indenture, pepper-corn fine) during for the lives for that purpose nominated in his memorial of the 5th the continu ance of a lease of April 1851, or for such other lives as the Court should think (of other lands) which proper, the petitioner offering to pay to the Corporation all sums, was to expire at Easter 1781, if any, due in respect of interest or fines under the lease, and the and during seventy years, renewals thereof. commenci from that at The petition stated that, by indenture, dated the 6th of Novem- period. It ber 1764, the Corporation of Dublin granted unto Garrett Earl of also contained a proviso, by Mornington and his heirs certain premises on the west side of Graf which the les see waived all ton-street in Dublin, being part of the holding therein mentioned to right to a re newal if he have been demised to Thomas Pooley, deceased : to hold to the did not nomi nate, within Earl, his heirs and assigns, for the lives of the Earl and of Arthur twelve months after the fall Gerald Wesley and Lord Wellesley, and for the lives and life of of each life, the new life such other persons and person as should successively thereafter, intended to be substituted for during the continuance of Thomas Poole 's lease, which was to that which had expired. It was renewed in 1820. One of the ceux qui vivent named in the renewal went abroad in 1825, and after 1833 was never heard of. In 1848, the two other ceux qui vivent being alive, the lessee applied to the lessor for a renewal, but was refused. At Easter 1851, the term of seventy years expired. On the 14th of April in the same year, the lessee filed his cause petition for a renewal. Held, 1.-That he was entitled to such renewal. 2.-That he was not bound to institute inquiries abroad as to the existence of the absent cestui que vie. 3.-That the case was not one in which the lessor was entitled to compensation.. 4.-That there should be inserted in the decree a declaration, that if it should be proved afterwards that the absent cestui que vie was living at Easter 1851, the renewal should be null and void. The Court, however, refused to declare that if it should be proved afterwards that, if the cestui que vie were dead more than a year before the demand in 1848 for a renewal, the renewal should be null and void. * The facts and arguments in this case are reported by ALFRED MTARLAND, Esq. CHANCERY REPORTS. 307 determine at the Feast of Easter 1781, and thence during the term of seventy years, be nominated and added, at and under the yearly rent and covenants therein mentioned ; and the Corporation thereby covenanted with the Earl, his heirs and assigns, to renew the lease by the insertion or addition of new lives, to be nominated from time to time by the latter during the term of seventy years ; each new life to be so nominated within twelve months after the fall of each life. The, petition then stated that, by -indenture of the 2nd of May 1766, the Earl assigned and assured unto Peter Wilson the premises demised by the above mentioned lease of the 6th of November 1764: to hold to him, his heirs and assigns, for the lives therein named; and for such other lives as should be added during the continuum of T. Pooley's lease, and thenceforth for seventy years, pursuant to the provisions of the lease of the 6th of November 1764. _ There were then set out a renewal and further renewal of the premises from the Corporation to Peter Wilson, each for three lives, and dated respectively the 8th of July 1778, and the 10th of August 1807 ; Peter Wilson's will of the 19th of August 1800, whereby he devised to his grandson Peter (in the petition afterwards called Peter Wilson the trustee), and to John North, and their heirs, all his right, title and interest in the premises, in trust, after certain purposes long since fulfilled, to pay over the rents and profits thereof to his daughters (the respondents) Sarah and Catherine Wilson during their lives, and the life of the survivor of them, for their or her separate use, with remainder to the issue male of the former, the elder of such son and sons, and his issue male, to take before the younger, with remainders over. The death of Peter Wilson in the year 1801, without having revoked or altered his will, save so far as it might have been revoked at law by the furÂÂther renewal, and leaving Richard Wilson, his heir-at-law, him surviving, was next stated, and the intermarriage in 1803 of the petitioner and the respondent Sarah Wilson, whose eldest son was the respondent John Hume Wilson ; and the marriage of the reÂÂspondent Catherine with one John May, deceased, as also the death of Richard Wilson in 1819, survived by Peter Wilson the trustee, 308 CHANCERY REPORTS. his son and heir-at-law, and also heir-at-law of Peter the tesÂÂtator; as well as two further renewals of the lease of the 6th of November 1764, from the Corporation to Peter the trustee, each in like manner for three lives, and bearing date respectively the 22nd of March 1819, and 3rd of June 1820 ; as also the death of that Peter in 1829, leaving R. Wilson his heir-at-law, and heir-at-law also of the testator Peter ; and an indenture of the 29th of September 1829, made between John North, the remaining trustee under the will of that testator, of the first part, the petitioner and Sarah his wife of the second, and Catherine May of the third, whereby John North granted and assigned to petitioner and his heirs all the said premises : to hold for his life, for the uses and trusts in such will particularly mentioned. The petition afterwards averred that Joseph Wilson, one of the ceux qui vivent named in the last renewal, went to America someÂÂtime in the month of March 1825, and was dead at the time of presenting that petition, or must be so presumed to be, under the cirÂÂcumstances subsequently stated, namely, that for some time after his leaving Ireland he corresponded with his cousin R. Wilson, but that, although letters had been frequently written by the latter to Joseph, no reply had been received from him for the last eighteen years, nor had any thing whatever been heard, within that period, of him by R. Wilson, or any member of Joseph Wilson's family ; that the...