Neale v Mackenzie
| Jurisdiction | England & Wales |
| Judgment Date | 22 February 1837 |
| Date | 22 February 1837 |
| Court | High Court of Chancery |
English Reports Citation: 48 E.R. 389
ROLLS COURT.
S. C. 1 Jur. 149.
[474] neale v. mackenzie. Feb. 22, 1837. [S. C. 1 Jur. 149.] Insolvency is a ground upon which the Court will refuse specific performance of an agreement to grant a lease, but there must be proof of general insolvency, and a particular default in the payment of rent to the landlord of the premises, last occupied by the person contracting for the lease, will not disentitle him to the performance of the contract, where there is the testimony of unexceptionable witnesses to his responsibility. A. having a life interest in premises vested in trustees who had a power of leasing, agreed to grant a lease for twenty-one years to B. The trustees refused to grant a lease to B., on the ground that he was in insolvent circumstances, and that the grant of such lease would be a breach of trust against their cestuis que trust. The Court being of opinion that B. was entitled to specific performance, and that the trustees had given A. some authority to act, ordered the trustees to execute a lease to B. to the extent of A.'s interest. The bill was filed by Thomas Neale against the Defendant John Andrew Mackenzie, and the Defendants Archibald Corbett and John Carr; and it prayed for the specific performance of an agreement by the Defendant Mackenzie to grant to the Plaintiff a lease of the premises in question, for seven, fourteen, or twenty-one years, at a rent of j65, and that the Defendant Mackenzie might procure all other (if any) necessary parties to execute such lease, and that he might make compensation to the Plaintiff in respect of the matters mentioned in the prayer. The premises comprised in the agreement, consisting of a house with a garden and orchard at Higham Hill together with eight acres of land, were devised by John Ingleby to the Defendants Corbett and Carr as trustees in trust for his daughter Ellen Ingleby, and after her decease for her children; and the trustees were empowered, with the consent of the person or persons beneficially entitled in possession to the receipt of the rents and profits of the devised estates, to demise all or any part thereof to any person or persons for any term of years not exceeding twenty-one years, subject to the usual restrictions. Shortly after the death of the testator, Ellen Ingleby intermarried with the Defendant Mackenzie, who, with the [475] permission of the trustees, entered into 390 NBALE V. MACKENZIE 1 KEEN 476. possession of the devised premises. Mackenzie let the eight acres of meadow land to a tenant named Charlton ; and, being afterwards desirous of quitting the premises, he employed Mr. Cooper, a house agent, for the purpose of procuring a tenant. Through Mr. Cooper's agency the Plaintiff was introduced to the Defendant Mackenzie, and a memorandum of agreement, dated the 25th of June 1833, was signed by the Plaintiff and Mackenzie, whereby Mackenzie agreed to let to the Plaintiff the premises described as all that messuage, tenement, and premises, together with the garden, orchard, and meadow land thereto belonging, situate at Higham Hill in the parish of Walthamstow, for the term of one year from the date thereof, at the clear yearly sum or rent of 70 to be paid in four equal quarterly payments on the usual quarter days. And the Plaintiff, on his part, agreed to take the premises at the aforesaid rent of 10, and to pay it in quarterly payments on the aforesaid quarterly days, or within a reasonable time thereafter. And the Plaintiff' agreed to keep the grounds, orchard, and garden in a good and proper state of repair, and to- pay all rates and taxes. And it was further agreed by Mackenzie to grant, at the option of the Plaintiff, a lease of the aforesaid premises, orchard, and ground for the term of seven, fourteen, or twenty-one years, at the yearly sum or rent of .65, and which lease was to be subject to the usual covenants. And the Plaintiff, should he decline having a lease, agreed to give up peaceable and quiet possession of the premises at the expiration of the twelve months. By a further memorandum Mackenzie agreed to complete all the outward repairs then in progress, and the Plaintiff agreed to do the internal repairs. And possession was to be given to the Plaintiff at Midsummer. In pursuance of the agreement, possession was delivered up by the Defendant Mackenzie to the Plaintiff [476] of all the premises comprised in the agreement, except the eight acres of land which Charlton refused to deliver up on the ground that he had not received notice to quit from Mackenzie. The Plaintiff completed the internal repairs of the house, and expended money in doing other repairs upon the premises. On the 25th of December 1833, Mackenzie demanded the entire half year's rent of 35, which the Plaintiff...
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