would accept it on the part of the infant) Leslie brought an ejectment on the title, which was served on all the family, under which he obtained judgment by default, and recovered the possession in 1778 (before the three years allowed for laying out the money had expired). Immediately after the execution of the habere, in August 1778, he executed a new lease to the uncle for three lives, at a rent which appeared clearly to have been the utmost value at the time. This lease was renewed in 1792. The uncle died, and the defendant his widow became possessed under his will of his interest in the lease, but without notice of the original agreement made with the plaintiff's father. The plaintiff attained his full age in 1796, and filed this bill in 1799. Mr. Suurin and Mr. Magrath for the plaintiff: the Attor ney General and Mr Rice for the defendant Griffin: Mr. 90 ome Pennefather for the defendant Leslie... The LORD CHANCELLOR was of opinion that there was no foundation for the relief sought against Mr. Leslie. In executory agreements, an infant cannot take advantage of his in-fancy, to excuse the non-assertion of his right under it, where an immediate assertion of his right, and performance of his part of the contract is essential to the interest of the other party. It might be very different if Mr. Leslie had used any improper means to get rid of the effect of the contract during the minority. Where there is an executory contract such as this an agreement to grant a lease on the one part, and a co-” venant to lay out money on the other, and the tenant dies," leaving an infant heir if this contract is to continue executory during the whole minority, it will not be giving to the landlord the benefit of that in consideration of which he sti pulated to grant the lease. It would be sanctioning delay on the part of the family of the infant, who in such case would probably always wait till he came of age, to the great inVOL. I. Z z 4+ 1804. GRIFFIN V. convenience of the landlord in the mean time. When Mr. Leslie offered to execute the contract if any body would come forward on the part of the infant, his friends ought GRIFFIN immediately to have acceded. Mr. Leslie is not to be bound after a lapse of twenty years, to execute this contract at the election of the party, when there are no assets to make good the stipulation on the part of the original tenant: even if there were, those in possession of the assets ought to have come forward before. But as to the uncle, Griffin, his lordship held that the lease made by Leslie to him must be decreed a trust for the benefit of the plaintiff. The ground of decreeing renewals by trustees to enure to the benefit of the infant is public policy,(a) to prevent persons in such situations from acting so as to take a benefit to themselves. The decree directed that " as to defendant Leslie, the "bill should be dismissed with costs: and as between the "other parties, declared that said Maurice Griffin ought to be decreed to have become a trustee for the plain"tiff of the lease of the 1st Aug. 1778, and the renewal "thereof obtained from the defendant Leslie in 1792, and "that plaintiff is entitled to the full benefit of such leases "and renewals, and the possession of the lands comprised "therein; and directed an injunction forthwith to issue "to put him in possession and quiet him therein. And an "account against said Maurice Griffin on the foot of the. “ rents and profits of the lands comprised in said lease, and "of what he made, or without wilful default might have "made while he held said lands under the contract entered "into by defendant Leslie with plaintiff's late father, or "after he obtained the lease: and a like account of what "has been received by the defendant Mary Griffin since "the death of Maurice. The master to allow the estates of "Maurice and Mary Griffin respectively, for all expendi"tures in procuring said lease, or otherwise on the premises: “and unless Mary Griffin should admit assets of Maurice to 66 answer what shall appear chargeable, it directed an ac"count of his personal estate. The costs so far as respect"ed the account against Maurice Griffin's estate, to be paid "out of his assets; as to the rest of the suit, no costs." Reg. Lib. xlix. 495. 1804. GRIFFIN V. GRIFFIN. KENNEDY v. DALY. MARINUS JAMES KENNEDY, a person professing the popish religion, died in the year 1763, seized in fee of several houses and premises in the city of Dublin, and also of the towns and lands of Rowlagh and Rahean and March 5. A papist by 1764, agrees "to convey to "trustees in "strict settle "ment, in case he should at any time thereafter during his life be qualified by law so to do." In 1778, he becomes qualified by law to carry these articles into execution. The lands held not to be specifically bound by these articles until 1778, and therefore judgments subsequent to 1764, but before 1778, were prior liens. A decree obtained by fraud and imposition, shall have no effect.. Fine and non-claim by a trustee to a person having notice of the trust, shall not bar the cestui que trust. A papist neglecting to take the oaths prescribed by the statute 17 & 18 Geo. 3, c. 49, within six months, &c. was not protected by that statute from a protestant information, nor enabled to sue: but the consequences of such neglect are removed by statute 33 Geo.3, .c 21, upon his performing the requisites therein mentioned. 1804. KENNEDY V. DALY. part of Clondalkin, in the county of Dublin, leaving issue Thomas and Walter Kennedy: upon his death, Thomas as his eldest son and heir at law possessed himself of said estates, and acted and was considered as the sole owner thereof, Walter never having set up any claim under the gavelling clause in the stat. 2 Ann. By articles of the 3d Aug. 1764, made previous to the marriage of Thomas Kennedy with Frances Fergus, between the said Thomas of the first part, Mary Fergus, widow, and Frances her daughter of the second part, and Walter Kennedy and Thomas Daly of the third part, it was agreed, "That in case the said: Tho mas should at any time thereafter during his life be en"abled and qualified by law so to do, he would by good "and sufficient conveyances in the law, grant and convey "all his real estate to said trustees and their heirs, in "trust for the use of himself and his assigns during his "life, without impeachment of waste, with remainder to "trustees to preserve contingent remainders; and, subject "to the dower of Frances, remainder to their first and "every other son in tail, remainder to the said Thomas, his "heirs and assigns ;" and it was also agreed that Thomas should have a power to charge said estates with 1,000l. for younger children: and Thomas further covenanted "that "until he should be qualified by the laws of this country "to make such settlement, he would not do any act where"by his said estates should be incumbered or otherwise " hindered or prevented from descending to the issue male "of said intended marriage; and that he would before the “end of one year remove all legal bars that might obstruct "said Frances in recovering her dower, which should be "at least 1504 sterling, per annum" The fortune of the said Frances, was by said articles agreed to be settled, and (amongst other things) 1,000l. part thereof, was to be paid to said Walter Kennedy, as a provision for him; which sum Walter received; and he was an executing party to the articles: the marriage took effect and the articles were registered on the 4th Aug. 1764. There was issue of the marriage, the plaintiffs James Marinus and Macarius John Kennedy. At the time of the death of Marinus James Kennedy, the estates were subject only to one judgment of 700%. obtained by Mrs. Elizabeth Clarke, which became vested in John Fullam: but Thomas and Walter having after the marriage, improvidently contracted debts, for most part of which they had executed their joint and several bonds, on which judgments had been entered; and having disagreed as to the proportions of said debts to which they were respectively liable, Walter filed his bill, in 1776, for a partition of his father's estates, grounded on the then existing laws against the growth of popery; and Thomas having answered and filed a cross bill, several adverse proceedings were had from thence until 1780, when their differences were accommodated, and a decree for a partition had by consent of Thomas pursuant to which the county of Dublin estates were allotted to Thomas, and the city estates to Walter. In the mean time several of the creditors had sued out custodiams, and particularly Ignatius Purcell, who sued out the first custodiam and got into possession of the whole estate and James Farrell, who had obtained two judgments, in Hil 1773, having employed the defendant, Owen Daly a practicing attorney, to recover the amount, he had proceeded to issue executions thereon. For the purpose of extricating themselves from these embarrassments, Thomas and Walter Kennedy conceived the design of procuring a sale of the estate discharged of the articles of Aug. 1764, for the payment of their own debts;; and with this view they laid a case before Dr. Radcliff, a 1804. KENNEDY V. DALT. |