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cided the other way, that courts have not permitted the form of the instrument to get the better of the actual contract between the parties.
MURPHY, a Bankrupt.
I am bound to decide in favour of a debt which is due in conscience, whether it be a legal or equitable debt, or a legal debt qualified by equity ; but if it appear to be a contrivance to evade the bankrupt laws, I conceive it is not a conscientious debt. Therefore I think the dividend must not be paid on this debt.
The motion But I can make no order on this petition at all; the as
ought to have signees should have applied to expunge the debt, and not been on the the party to be paid it; for I cannot on this petition order part of the as.
, the debt to be expunged.
punge the debt.
SHANNON v. BRADSTREET. 26, 31.
SIR SIMON BRADSTREÉT, Baronet, by his last will Tenant for life, with a devised the lands of Portmahon to the use of his second son leasing power, enters into an Samuel (afterwards Sir Samuel) Bradstreet, for his life, withagreement by
out impeachment of waste, remainder to trustees to prearticle, to make a lease serve contingent remainders ; and from and after the depursuant to the power.
cease of Samuel, to the use of his first and other sons, and This agree.
the heirs male of their bodies, with several remainders ment shall bind the remainder. over; and the testator gave and reserved “
a power to the man. “ said Samuel, only when in possession of such lands, to
lease or leases of said lands and tenements, or any part thereof, except the mansion-house, &c. but withs out fine, and to take effect in possession and not in rever“ sion, for any term not exceeding three lives or thirty-one
years, at the best improved yearly rent that could be had for at the time of making the said lease, and without any " clause of being dispunishable of waste,"
o make any
Sir Samuel Bradstreet having become seized of a life estate under this devise, in the year 1790, entered into a treaty with the plaintiff, to demise to him the lands in question, and an agreement was made for a lease to the plaintiff for the term of thirty-one years, from the first day of November 1790, at the yearly rent of 7l, per acre, for such number of acres as the lands should upon a 'survey be found to contain ; the lease to contain the usual covenants between landlord and tenant ; and also a covenant that the plaintiff should within the first three years lay out 2001, in buildings and permanent improvements. A draft of a lease pursuant to this agreement was prepared by the plaintiff, and laid before Sir Samuel, who made some few altera
tions therein, and returned it with the following indorsement in his own hand writing.
“I approve of this draft: until a survey can be had, so as to ascertain the rent, Mr. Shannon may execute a short “ memorandum to me according to the terms of this draft, " and may have the immediate possession. 4 29th October, 1790.
A memorandum was accordingly prepared, (but whether by Sir Samuel, or by the plaintiff did not appear) it was signed by the plaintiff and delivered to Sir Samuel, who delivered a copy or abstract of it, in his own hand writing to the plaintiff, the original remaining in the custody of Sir Samuel; the memorandum was as follows:
“ I, Peter Shannon, of the city of Dublin, tanner, do here“ by agree with Sir Samuel Bradstreet, to take a lease for 31 “ years from the first day of November 1790, of the lands u of Portmahon, in the county of Dublin, late in the pos“ session of Michael Kane, and his representatives and
under tenants, at the yearly rent of 7l. for every acre the “ said lands upon a proper survey to be had shall
appear to “ contain, and so in proportion for every lesser quantity " than an acre. I also agree to lay out in the first three
years in houses, buildings, and permanent and useful “ improvements the sum of 2001. Leases to be drawn as
usual between landlord and tenant.”
Immediately after execution of this memorandum, the plaintiff entered into possession, and laid out considerably more than 2001. in improvements, but no leases were ever executed. Sir Samuel (who was at, and for several years before his death, one of the judges of the court of King's Bench) died on the 2d of May 1791, leaving the
defendant, Sir Simon Bradstreet, his eldest son, and entitled under the limitations in his grandfather's will to an estate tail in the lands in question ; the defendant did not attain his full age until November 1792, till which time the plaintiff's rent, at the rate of 71. per acre for ten acres, was received by Lady Bradstreet, the mother and guardian of the defendant, and it continued afterwards to be regularly paid' by plaintiff and received by the agents of defendant, until. November 1801, when a notice to quit was served, on which an ejectment was brought as of Easter Term 1802, shortly after which plaintiff filed this bill, and obtained an injunction.
Defendant by his answer admitted, that both before and after attaining his full age he had notice of the agreement, but insisted that his estate was not bound thereby, and that he never acted upon such agreement, but always treated and considered the plaintiff as tenant from year to year.
The case was fully argued upon a motion to continue the injunction to the hearing upon equity confessed; it being agreed by the parties, that the opinion of the Lord CHANCELLOR upon this motion should decide the cause.
Mr. Saurin, Mr. C. S. Williams, and Mr. Redford for the plaintiff.
1. It is established by numerous cases,
that perform acts under powers have been held binding against remainder-men. Coventry v. Coventry, 2 P. Wms. 222, and S. C. reported in Maxims of Equity; Alfordv. Alford, 2 Eq. Abr. 659, and Gilb. Rep. Eq. 167; Cambell v. Leach, Ambl, 740 ; and though there is no case precisely establishing that an agreement for a lease in pursuance of a power shall bind, yet the principle which governs those cases applies equally
to this. The tenant in this case is a purchaser for a valuable consideration, and he contends with a mere volunteer ; for the defendant who disputes the due execution of this power, enjoys his estate under the very same instrument by which the power is created : the power exercised by tenant for life, is not exercised by him in virtue of his life estate ; it is a power derived from the fee, and only entrusted to the tenant for life by the owner of the fee, in like manner as, where a man makes a feofsment to the use of his will, he has the use in the mean time; and if in such case the feoffor, by his will, limits estates according to the power reserved to him on the feofsment, the estates shall take effect by force of the feoffment. Clere's Case, 4 Go. 17 b. 2. If the agreement in this case was a good execution of the leasing power, there is no pretence to say that that power was transgressed, unless it be so by the covenant to lay out 2001. ; but this sum was to be laid out for the benefit of the inheritance, and was not to go into the pocket of the tenant for life; suppose the covenant had been, that the tenant should expend 200l. in draining bog, and making it valuable land, it would not be contended that such a covenant would avoid the lease ; and yet the covenant here is precisely to the same effect. 3. Admitting that this agreement was originally impeachable, yet equity will now consider it as confirmed by the tenant for life accepting rent under it, and with full notice of its existence, for so many years after he arrived at his full age, more particularly as he stood by during the whole period from 1792 to 1801, and suffered the tenant to expend large sums in improvements on the faith of the agreement without any objection. Styles v. Cowper, 3 Atk. 692; Smyth v. Low, 1 Atk. 489.
Mr. Burston, Mr. Plunket, Mr. Conmee, and Mr. Yelverton, for the defendant,