Thomas Sadlier the Elder, and Another-Appellants; Samuel Dickson Biggs, - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 05 July 1853 |
| Date | 05 July 1853 |
| Court | House of Lords |
English Reports Citation: 10 E.R. 531
House of Lords
Mews' Dig. vi. 531, 791; vii. 1502; viii. 828. See Waterpark v. Fennell, 1859, 7 H.L.C. 650.
Leases - Renewals - Registered Memorial of Deed - Evidence.
[435] THOMAS SADLIEK the Elder, and Another- Appellants; SAMUEL DICKSON BIGGS,-Respondent [July 1, 4, 5, 1853]. [Mews' Dig. vi. 531, 791; vii. 1502; viii. 828. See WaterparJc v. Fennell, 1859, 7 H.L.C. 650.] Leases-Renewals-Registered Memorial of Deed-Evidence. S., on the 5th January, 1746, being tenant in fee simple of lands in Tipperary, executed an indenture, which was, two days afterwards, registered under the Irish Registration Acts. The memorial represented that S. had, by the indenture, demised, or agreed to demise, these lands to C. for three lives, therein-named, with " a clause of renewal after the expiration of said lives thereinbefore-mentioned," provided that C., his heirs, etc., should, " within six months from the death of the last of said three lives, nominate such life or lives as he would have inserted," and pay all rent, and "the sum of 11 7s. 6d. for adding or renewing such life or lives for ever." The memorial was signed by C. alone, and he registered it. In February, 1750, S. executed a, settlement in contemplation of marriage, by which he made himself tenant for life only in the estate comprised in the indenture of 1746. In March, 1750, he executed a lease to C., in which the indenture of 1746 was recited, and in consequence of some changes in the lands a change was made in the rent. The lease recited the indenture as a demise to C. for three lives and the longest liver of them, with a covenant to " renew the same for ever, on 531 IVH.L.C., 436 SADLIER V. BIGGS [1853] payment of 11 7s. 6d. for renewing the same on the fall of every life, within six months next after the fall of each life." The habendum in the lease was for the same three lives; and S. covenanted that, " upon the death or failure of the aforesaid life or lives, or any or either of them " (naming them), and upon C., his heirs, etc., paying " the sum of 11 7s. 6d. above the annual rent, within the space of six calendar months, and immediately after the death or failure of such life," and on nomination, etc., " S. and his heirs," etc., would add the life so nominated ; " and so in like manner from time to time successively for ever thereafter on the failure of every other several life or lives in the said lease or thereafter to be nominated." Renewals had, from time to time, been made by the successors of S. in the estate, sometimes after proceedings in Chancery to compel the same, sometimes without such proceedings; but in 1845, G., the descendant of S., having absolutely refused to renew, a Bill was filed against him by B., who had become [436] possessed of C.'s lease. The Bill prayed for a renewal according to the lease, which B. alleged to have been made in conformity with, and under the obligation of, the indenture of 1746. This indenture could not be produced, but the memorial was tendered and received in evidence. The defendant alleged that the lease was ineffectual to bind the inheritance, as it was made by a person who was, at the moment of executing it, only tenant for life, and he contended that there was no legal evidence of the indenture of 1746. He also relied on the difference between the terms of renewal contained in the indenture and those contained in the lease: - Held, affirming the judgment of the Court below, that the plaintiff was entitled to the renewal as prayed; that the memorial was properly admitted as secondary evidence of the indenture; that that indenture was to be treated as an original lease, containing a covenant, under the obligation of which the lease of 1750 was executed; that the obligation entered into in 1746 being by the tenant in fee simple, his performance of it in 1750 was valid, / although he was then only tenant for life; and that the acts of the successive ty ' tenants of the estate, though not evidence to prove the existence of the covenant, , ' became, when the covenant had been otherwise; proved, evidence of the construction which the parties interested had put upon it: Upon one of the occasions of renewal, the tenant for life against whom a Bill had been filed was an infant. The Court of Chancery in Ireland ordered his guardian to execute a lease in conformity with the covenant contained in the deed of January, 1746 : Per Lord St. Leonards, that order was authorised by the Irish statute 11 Anne, c. 3. This was an appeal against a decree of the Court of Chancery in Ireland, made in a suit which was originally instituted in the Court of Exchequer in equity there, and which was afterwards, under the provisions of the 13 and 14 Viet., c. 51, transferred to the Court of Chancery. The respondent, in 1845, filed a bill, which was afterwards amended, and to which the younger of the appellants was then added as a party, against the appellants, in order [437] to compel them to grant a renewal of a lease of certain lands held by the respondent under them, according to the covenants and conditions contained in a lease originally granted on the 2nd of March, 1750. The bill, as amended, stated that Charles Sadlier was seized, as in fee, of certain lands called Bellevue, etc., and, by certain indented articles, bearing date the 5th day of January, 1746, a-nd made between the said Charles Sadlier of the one part, and John Chawner, of Ballyguider, in the said county, of the other part, Charles Sadlier demised, or agreed to demise, to John Chawner, his heirs, etc., the towns, lands, and premises described in and demised by the indenture of lease next mentioned, for and during the lives and life of John Chawner, Daniel Alt, and Joseph Palmer, and the survivor of them, at the yearly rent of 92 10s., payable as therein mentioned, and in which said articles was contained a covenant for the perpetual renewal thereof. That the respondent has not in his possession or power the said articles, but believes same have been long since lost or destroyed, but a memorial thereof, duly 532 SADLIER V. BIGGS [1853] IV H.L.C., 438 perfected by said John Chawner (Chawner's name alone was signed to the memorial. His signature was duly attested by two witnesses), was duly registered, in the proper office for registering deeds in Ireland, on the 7th day of January, 1746, and which said articles are stated in said memorial to contain " a clause of renewal, after the expiration of said lives therein-before mentioned, provided said Chawner, his heirs, executors, administrators, and assigns, should, within six calendar months, to be computed from the death of the last of the said three lives, nominate and appoint such life or lives as he or they would have inserted in any lease to be made thereof, and paying as well all rent and arrears that should be due for the half-year after the fall of such life, as the sum of 11 7s. 6d. for adding or [438] renewing such life or lives for ever," as by the said original articles, or a counterpart thereof, in the possession of the defendant, Thomas Sadlier, had the plaintiff the same to produce, or by the said memorial, or an attested copy thereof, when produced and proved, will more fully and at large appear. The bill then alleged that, by lease and release dated 2nd March, 1750, between the said Charles Sadlier of the one part, and the said John Chawner of the other part, after reciting a lease by Sadlier's father, dated 1st October, 1724, to John Chawner and Daniel Alt, and a lease from Colonel Thomas Butler, and that by the death of Sadlier's father, the fee-simple and inheritance of said lands descended to said Charles Sadlier, party thereto, and his heirs, and that said Charles Sadlier, party thereto, by the articles of January, 1746, had demised to said John Chawner and his heirs certain lands therein described, to hold the aforesaid towns, lands, etc., for and during the three lives therein named, and the longest liver of them, at the yearly rent of 92 10s. with a covenant to renew the same for ever, on payment of 11 7s. 6d. for renewing the same on the fall of every life within six months next after the fall of each life, arid it was by the said indenture witnessed, that the said Charles Sadlier, party thereto, in pursuance of said indented articles, and for the considerations therein mentioned, demised, etc. unto the said John Chawner, his heirs and assigns, All that, etc., excepting thereout unto Charles Sadlier, his heirs, etc., all mines, etc., and also full and free liberty to hunt, hawk, fish, and fowl, etc. To have and to hold all and singular the said demised premises, with their appurtenances (except as before excepted), to the said John Chawner, his heirs and assigns, from the first day of November then last past, for and during the lives of said John Chawner, Daniel Alt, [439] and Joseph Palmer, and the survivors and survivor of them, and for and during the natural lives and life of all and every such other person and persons as by virtue of the clauses and covenants for perpetual renewal thereinafter contained, should, from time to time, successively and for ever thereafter be added to said demise, he, the said John Chawner, his heirs and assigns, yielding and paying therefore and thereout unto the said Charles Sadlier, his heirs and assigns, the yearly rent or sum of 90 8s. (the sum had been altered by agreement, Sadlier having lost his interest in a small part of the property), then currency, payable half-yearly, etc.; and Charles Sadlier did thereby, for himself, his heirs, and assigns, covenant, promise, and agree, to and with John Chawner, his heirs and assigns, that upon the death or failure of the aforesaid life or lives of the said John Chawner, Daniel Alt, and Joseph Palmer, or any or either of them, and upon the said John Chawner, his heirs or assigns, first...
To continue reading
Request your trial
-
Riggs Miller v Wheatley
...HARRISON, O'BRIEN, and JOHNSON, JJ. (1889 — F. No. 115.) RIGGS MILLER and WHEATLEY Biggs v. Sadlier 10 Ir. Eq. R. 522. Sadlier v. Biggs 4 H. L. Cas. 435. Birt v. BarlowENR 1 Doug. 171. Lester v. Garland 15 Ves. 248. Railway Sleepers Supply Co. 29 Ch. Ch. Div. 204. Townsend v. AshENR 3 Atk. ......
-
La Touche v Hutton
...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......
-
Pollock v Booth
...89. Hope v. The Mayor of Gloucester 7 D. M. & G. 647. Cole v. Sewell 4 Dr. & War. 1. Hare v. BurgesENR 4 K. & J. 45. Sadleir v. BiggsENR 4 H. L. C. 435. Mahony v. Tynte 1 Ir. Ch. R. 577. Sherlock v. Kennedy 15 Ir. Ch. R. 160. Benson v. BensonENR 1 P. Wms. 130. Parfitt v. HumberELR L. R. 4 E......
-
Hare v Burges
...so now; and on the terms of the covenant in that case they would at the present day hold differently, as is clear from Sadlier v. Biggs (4 H. L. C. 435). Moreover, Baynham v. Guy's Hospital is inconsistent with other authorities, and particularly Atkinson v. Pillsworth (1 Eidgway's Parl. Ga......