1803. BROWNE v. O'DEA. cut drains and make ditches and build double stone walls, and make other improvements thereon, in consideration of which the defendant was to be at liberty to pare and burn any part of said lands that he might think fit for tillage. In Michaelmas term, 1789, defendant entered up judgment on the bond and proceeded to outlawry thereon, and obtained a custodiam and served notice on plaintiff's tenants to pay their rents to defendant. Plaintiff having become still more embarrassed by such proceedings, resolved to sell his reversion in said lands; and defendant agreed to purchase, at the rate of twenty-three years' purchase at the rent then reserved, provided plaintiff would exonerate the lands from certain charges subsisting thereon; but after plaintiff had at a great trouble and expense procured the discharge required, (to enable him to obtain which he had been obliged to borrow another sum of 100%. from defendant on his own and his brother's joint bond) defendant declined to complete the purchase and threatened to proceed on the last-mentioned bond, with a view, as bill charged, to get the lands on his own terms. After the agreement was broken off, the defendant proceeded to pare and burn about ten acres of the lands, and that, as bill charged, without having made the improvements covenanted for. The bill, which was filed in July 1797, prayed that the leases of 2d May 1776, and 1st Nov. 1789, and the bond and warrant should be brought into court, and that the last mentioned lease should be set aside or decreed a collateral security for said sum of 500l. and an injunction to restrain proceedings on the custodiam, and to restrain the defendant from burning the lands; and that the profit made by the defendant by burning the lands might be set off against the debt due by the plaintiff. The defendant by his answer denied that the lease of 1st Nov. 1789 was made at an under value, and to this fact any there was a good deal of evidence on both sides; he insited This cause having come on to be heard before Lord CLARE on the 8th day of March 1800, his Lordship was pleased to decree the lease of the 1st Nov. 1789 fraudulent and void, and directed the master to take an account of all payments made by defendant on the foot of said lease over and above the rent reserved by the lease of the 2d May 1776, and also to take an account of all lasting and valuable improvements made by defendant on the lands comprised in the said lease of the 1st Nov. 1789, and to set off the amount of such improvements against the profits accruing to the defendant from paring and burning the surface of the said lands pursuant to the covenant contained in said lease of 1st Nov. 1789, and to strike a balance between the parties; and that the plaintiff should allow the defendant the amount of such sum as should be reported due of such over-payments and on foot of such balance, in discharge of the rent payable by defendant under the lease of 2d May 1776; and 1803. BROWNE. V. O'DEA. 1803. BROWNE V. O'DEA. that the defendant should be restrained from paring or burning during the term unexpired in the said last-mentioned lease; and that the bill should stand dismissed as to so much as sought an injunction on the foot of the two judgments or either of them. The cause now came on upon a re-hearing: Mr. D'Arcy for the plaintiff. Mr. Fitzgerald, Mr. Williams, and Mr. O'Grady for the defendant argued, that whatever disposition the court might have under such circumstances as the present to relieve a plaintiff who had acted fairly, it would not be solicitous in behalf of one who had lain by for seven years after the execution of the lease complained of, taking his chance of the lives dropping in the mean time; and who would not have come in even then (as may be collected from the case) if he had not been disappointed in his scheme of selling his reversion to the defendant. That, though the rule collected from the statute of usury, "that no advantage, directly or indi"rectly above legal interest should be gained," was a wise rule, yet it might be carried too far if applied to every case of a lease granted at the same time that a loan of money was obtained; the rule, as so applied, presumes that the lease granted is a benefit to the tenant; but that does not necessarily follow, and there are circumstances to shew in this case, that there was a full and ample consideration for the lease, in the increased rent and in the covenant to build and improve indeed, unless a benefit to the tenant appears on the face of the lease, the court cannot interfere. Lord CHANCellor. The question is, whether this lease was made under such circumstances that it ought to be impeached. It is clear that the transaction respecting it took place at the same time with a transaction respecting a loan of money; you attempt to separate these transactions, but you cannot ; nothing appears in the case to separate them, and they must be taken to be one and the same transaction. It would perhaps be a good rule to be generally observed, that a transaction of this nature is not to make part of a transaction respecting the loan of money(a), because the person borrowing under such circumstances is not a free agent; it must be presumed that whatever advantage the tenant has obtained by the lease was the inducement to him to lend the money, and that is getting a profit for the loan of money beyond what the law allows. But in this case it is clear that the lease was a beneficial lease to the defendant; this is acknowledged even by his anxiety to maintain it. Having a lease for a term of which about seventeen years are unexpired, he gets a lease for three lives now, by the common understanding of all who deal in such matters, this is a much better interest than the other; and for this he is to pay only 27. 14s. additional rent, which cannot be considered a sufficient inducement to the landlord to charge his estate with this longer term: besides, he has a permission to pare and burn the lands as he shall think fit, on certain conditions, which consist of his building a house of a particular description and making walls and drains, and for doing this no time is limited; the (a) In the case of Hunt v. Potter, in this court, March 5, 1804, there having been contradictory evidence as to the fact of the loan and lease being one transaction, an issue was directed to try "whether the plaintiff at any time and when previous to the day on which the lease was executed, contracted and agreed with ́defendant to grant said defendant the lease, wholly independant of and unconnected with a loan, or treaty or communication for a loan af money." So in Drew v. Power, July 2, 1803, (host) the Lord CHANCELLOR was about to direct an issue "whether the lease was executed "without any regard to a loan of money;" but his Lordship afterwards found the evidence before him was sufficient to decide on. 1803. BROWNE V. O'DEA. 1803. BROWNE V. O'DEA. effect of which is to put the lands so completely in the power of the defendant that he may leave them worth nothing at the expiration of the lease. There are indeed clauses beneficial to the landlord, though there is nothing in the case to shew that they have turned out so; but the covenants to pare and burn are beneficial to the tenant only; and the question is not whether the burning, &c. be or be not injurious to the landlord, for even if it were beneficial to him, if it were beneficial to the tenant likewise, it is a benefit beyond what the rule of law allows, that a party shall not by any means obtain benefit on the loan of money, beyond legal interest. I am therefore of opinion that this lease cannot be supported. I think the decree requires alteration in one part. The master should take an account of the valuable and lasting improvements made by the defendant since the 1st Nov. 1789, and which were of such a nature as that the same could not have been valuable to the defendant under his original lease; but it does not appear to me that he has done any thing which he would not have done under his original lease. Reg. Lib. xlix. 7. "Let the decree be reversed so far as "it directs an account to be taken of all valuable and lasting "improvements made by the defendant on the lands com prised in the lease of the 1st November, 1789, and that "the amount of such improvements be set off against the "profit accruing to the defendant, from paring and burn"ing the surface of the said lands, pursuant to the cove66 nant contained in the said lease, and that a balance should "be struck between the parties: and, instead of such directions, let the master inquire whether the defendant, "after the execution of the said lease of the 1st of Novem"ber, 1789, and before the filing of the plaintiff's bill 66 |