The Estate of Rev. John Lewis Irwin, Clerk, Owner; ex parte Arthur Shuckburgh Upton, Petitioners

JurisdictionUK Non-devolved
Judgment Date07 April 1856
Date07 April 1856
CourtPrivy Council

Privy Council.

In the matter of the Estate of REV. JOHN LEWIS IRWIN, Clerk,
Owner;
Ex parte ARTHUR SHUCKBURGH UPTON,
Petitioners.

Hall v. Smith 14 Ves. 426.

Pope v. Garland 4 Y. & Col., Exch., 394.

Waring v. Hoggart 1 Ry. & M. 39.

Taylor v. GormanUNK 4 Ir. Eq. Rep. 550.

Martin v. CotterUNK 9 Ir. Eq. Rep. 352.

Spunner v. WalshUNK 10 Ir. Eq. Rep. 386.

Vignolles v. BowenUNK 2 Ir. Eq. Rep. 194.

Vaughan v. MagillUNK 12 Ir. Eq. Rep. 200.

Pope v. Garland 4 Y. & Col., Ex., 394.

Vignolles v. BowenUNK 12 Ir. Eq. Rep. 194.

290 CHANCERY REPORTS. 1856. Privy Council. In the Matter of the Estate of REV. JOHN LEWIS IRWIN, Clerk, Owner; Ex parte ARTHUR SHUCKBURGH UPTON, Petitioner.* April 5, 7. (Judicial Committee of the Privy Council). * Before The LORD CHANCELLOR, The LORD GRIME JUSTICE of the ComÂmen Pleas, BARON GREENE, JUDGE BALL, JUDGE KEATINGE and the Right Ron. FRANCIS BLACKBURNE. Lands of CARROWNACREEVY, situate in the Parish of Dromard, Barony of Tireragh and County of Sligo. No. Denominations. Tenants' Names. Quantity Statute Measure. Yearly Rents. Amount of Valuation by N. St. Leger, County Surveyor. Gale Days. Particulars of Tenure. Observations. ARP Lad Ls d I Carrownacreevy Richard Beatty 71 1 30 54 0 0 77 8 5 • 25th March and 29th Sept. • - Lease, dated 24th June 1845, made by John Irwin, Esq., to Charles Beatty, gent., for three lives, all of whom are still living, namely, George Beatty, son of George Beatty, of Tinoid, then aged about eleven years ; John Beatty, youngest son of John Beatty, Governor of Sligo Gaol, then aged about seven years, and the Prince of Wales, then aged about three years, or thirty-one years concurrent. This rent has been temporarily reduced to £48. 18s., per Master Litton's Re- port of 14th August 1850, pending the cause of Upton v. Lifford. Reserves all royalties, and li.. berty for lessor to make new water-courses and mill-races. Covenant by lessee to expend £300 in building a dwelling house and inclose an orchard; against burning the soil ; to maintain improvement, to re. store possession ; right to view repairs ; against alienation ; proof of a life in being; reser vation of game ; and for planting and registering trees. There is a store and malt kiln built on this farm. 9 Ditto Widow Jane M'Munn and Edward M'Munn 13 2 28 10 0 0 5 12 5 25th March and 29th Sept; Lease, dated 11th July 1845, made by Colonel Irwin to John M'Munn, for two lives, one of whom, Edward This lease contains the same covenants as No. 1 in this Lot. M'Munn, then aged sixteen years, is living, or twenty-one years concur rent, whichever of said lives or years should last longest. Rent tempora rily reduced, per same report, to £8. 10s. 292 CHANCERY REPORTS. 1856. has erected a store for exporting grain, &c. This townIand is well Privy Council. intersected with roads ; the mail-coach road from Sligo to Ballina In re limn 7. passes through it ; it is about eight miles from Sligo."* All persons desiring further particulars were referred to certain Statement, persons therein named, and, amongst others, to Noblett R. St. Leger, Esq., of Sligo. The petition of appeal stated that by the representations and statements so made in the said rental, the purchaser was induced to believe, and did believe, that the covenants for building, and also for .planting trees on the said holdings Nos. 1 and 9 respectively, were valid and obligatory on the respective tenants thereof, and that the benefits of such covenants would be transferred to the purchaser of said lot,, and be enforcible by him ; that he believed the statements that those tenants were bound to plant timber on their holdings to mean a substantial quantity of trees, such as would not only better secure the rents reserved thereout, but also, and which was of greater importance to him, would greatly improve the other lots during the continuance of the lease, and at the determiÂnation thereof be large and well-grown timber ; for he purchased lot 3 in order to include it with lots 1 and 2 in the demesne of Tanrego, as it had been in the lifetime of Colonel Irwin, the late owner of the estate ; and that, being desirous of obtaining for his residence the mansion-house of Tanrego, with the said lands of Tanrego East and West, and Carrownacreevy as the Demesne, soon after the publication of the said rental, he applied to the said Noblett R. St. Leger for information about the same, and the said Noblett R. St. Leger then distinctly assured him that the said R. Beatty, the tenant of the said holding No. 1, was undoubtÂedly bound to build, as represented in the said rental. The purchaser accordingly soon afterwards made a private offer to the Commissioners for the purchase of the said lots 1, 2, 3 and 4, which was refused. He then directed his brother Francis M. Olpherts to bid for the said lots 1, 2, 3 and 4, at the public sale in January 1855, and was declared the purchaser. In the month of July 1855, the purchaser went to the holding of Richard Beatty, being No. 1 of lot No. 3, and inquired where he * See preceding page. CHANCERY REPORTS. . 293 intended to build the dwelling-house mentioned in the rental; pointÂing out to him, at the same time, the non-inclosure of an orchard, the defective state of the fences, and also that he had not planted timber trees, as he was bound to do ; whereupon the said Beatty told the purchaser that he had done all he was bound to do by his lease, and would not do anything more. The clauses contained in the lease to Charles Beatty were as follows :-" And the said Charles Beatty, for himself, his heirs, executors, administrators and assigns,. do covenant, promise and agree to and with the said Irwin, his heirs and assigns, in manner following, that is to say, that the said , heirs or assigns, shall; within - years from the day of the date of these presents, expend the sum of £300 sterling, at the least, in building on the said demised premises a good and substantial dwelling-house, exclusive of out-offices ; the said dwelling-house to be two stories high, and that the outside walls of such dwelling-house shall be two feet thick, and built of good stone, and cemented with lime and sand mortar, and to be slated with Bangor slates, and the whole building to be completed in a fit and workmanlike manner : and further, that the said , heirs or assigns, shall, within the period last afore said, inclose for an orchard, with a sufficient ditch, well made, ail planted with a row of quicks, on - side, or with a stone wall at least five feet high, two feet broad at the bottom, and eighteen...

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