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1804.

KENNEDY

DALY.

prevents a fine and non-claim barring, as between an express trustee and cestui que trust was applicable to a trustee who is such only by implication; as where a party covenants to convey: nor has it been decided that a purchaser from him by fine, though having notice, cannot protect himself by five years non-claim. This is not like the cases put of a fine by a tenant in possession continuing to pay his rent, or by a mortgagee in possession who receives the rents upon the ground of the contract in lieu of his interest and towards the discharge of his debt. In these cases there is a continuing privity. But it is different where the possession is adverse, as where a party covenanting to convey does not convey, or conveys in opposition to the covenant. Here the title of the plaintiffs, if any, accrued in 1791, and their bill was not filed until 1799. If a person covenanting to convey to particular uses, sells the estate, though with notice, and those claiming under the covenant lie by for twenty years without any disability, it could not be contended that the ordinary statute of limitations would not in such case protect the purchaser ; and there seems no sound distinction between that case and the effect of non-claim after a fine, which is only a more expeditious limitation, introduced by the legislature for the more speedy quieting of titles by force of that particular assurance. Salisbury v. Bagot, 1 Cas. in Chan. 278.

It was contended also that the present plaintiffs had not duly qualified themselves so as to sustain their suit under the relaxing laws. In the statute 17 & 18 Geo. 3, there is a proviso (8.3)“ that no papist shall take any benefit by that “act unless he shall, before the 1st Jan. 1779, or within “ six months after any devise, descent or limitations shall “ take effect in possession, or (if under disability) within six “ months after disability removed, take and subscribe” certain oaths prescribed by an act of 13 & 14 Geo. S, C, 33.

1804.

KENNEDY.

Daly.

To meet this objection, counsel for the plaintiffs produced a certificate from the rolls office, that the plaintiffs had, on the 20th April, 1793, taken the oaths prescribed by the statute 33 Geo. 3, c. 21 ; and insisted that that act was made to take away disabilities remaining after the act of 17 & 18 Geo. 3, (under which disabilities the plaintiffs had lain, by not conforming within the time then limited): and that its effect was to remove all such disabilities, upon taking the oaths there prescribed ; and that the plaintiffs had taken the oaths within a proper time, no particular time for so doing being limited by this statute.

Lord CHANCELLOR.

In this cause, the bill has been filed by Frances Kennedy, May 14. widow, James Marinus Kennedy and Macarius John Kennedy, the surviving children of the said Frances Kennedy and of Thomas Kennedy, Esq. deceased, against Owen Daly, who claims as purchaser of these lands, against the surviving trustee in the articles of 1764, and the administrator of Walter, and others; and the object of the suit is to have the benefit of the contract made on the marriage of Thomas Kennedy, on the 3d of August, 1764.

The first question arises upon the operation of that contract, the parties to which were, Thomas and Walter Kennedy, the lady and her mother, and Thomas Daly, who with Walter Kennedy was made a trustee. The father of Thomas and Walter Kennedy, being seized ofa considerable property in the county and city of Dublin, upon his death, though he professed the Roman Catholic religion, (which gave his younger son a right under the existing laws to claim a moiety of the estate) lyet Thomas the elder son had been permitted to enter into possession of the whole estate, and to hold it subject to a debt incurred by his father, and Vol. I.

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which consisted only of a judgment obtained by Eliz. Clarke
for 7001. Under these circumstances articles were entered
into on the marriage of Thomas Kennedy with Frances Fer-
gus: the persons who were parties to them appear to have
been perfectly apprized of the effect of the laws then in
force with respect to the disposition of landed property by
Roman Catholics, and to have judged of them with per-
fect accuracy; and they framed their contract in the best
manner which under the circumstances they could. With
respect to Walter Kennedy, the sum of 1,000l. was to be
taken from the lady's fortune and given to him, which he
appears to have been then willing to accept of in lieu of the
proportion of the estate to which he was entitled. It cer-
tainly was not that which the law gave him, for he was en-
titled to a moiety of the estate, but it was that which he
consented to take, and therefore, so far as he had
or interest, I think he was bound.

any right

The contract entered into was not for any conveyance to be made at the time, but that if at any future time Thomas Kennedy should be enabled to convey the estates, they should be conveyed to the use of himself for life, and then, subject to a provision for his wife, to the first and every other son in tail, with a power to charge 1,000l. on the estate for younger children: and if he should never be so enabled during his life, there was a personal covenant that Thomas would not do any thing to incumber the estate, but would suffer it to go and descend to the issue male of the marriage according to the then existing laws of Ireland. That covenant was conformable to the then existing law, especially as to Thomas's moiety, whatever question might be made as to Walter's. These articles having been entered into the marriage took place, and Walter Kennedy received that part of the lady's fortune which it was agreed he should get. Then the situation in which the parties stood was this ; that

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1804.

KENNEDY

V. DALY.

they must rest on the personal covenant of Thomus and the effects of it, for as the law then stood, a conveyance could not be made unless Thomas should think fit to conform. The estate could not descend during his life, and therefore during his life could not be bound specifically by any contract which he had made; and at his death it could only be bound according to the nature of the contract he had made, that the persons with whom he had contracted should take as his heirs. The contract therefore cannot be quarrelled with as an evasion of the law, so far as the moiety of Thomas was in question.

Now, the object of this settlement being to secure the pro- To hold that the perty as far as the law then in existence would admit, to articles of 1764

bound the lands give it any construction which would have a greater effect, specifically,

would defeat would be to construe the words against the intent of the the intent of parties; and though, if the property had not been af- the parties. fected by the popery laws, there might be ground to say that the contract might have bound more specifically, yet as made with a view to those laws it would be monstrous to say that it should imply what would defeat the articles themselves; it is to be observed that these articles were immediately registered, were made notorious to all the world; and if the parties had intended to make this a contract specifically binding the lands, that would have been calling on a protestant discoverer to overturn the title. All that the articles meant to say was,

we will do whatever the law " allows us to do.” It seems to be perfectly settled, in Howard's Popery Cases,(a) that wherever a contract gave to a papist an interest in its nature specifically affecting lands, the law attached upon it in favour of a protestant discoverer: therefore if these lands were to be considered as specifically bound by the contract, the result would be, that a title would be given to a protestant discoverer, which

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(a) Vid. Merry v. Dunn, How. Pop. C. 91.

1804.

KENNEDY

was the thing the parties intended to avoid. The lands therefore must be held not to be specifically bound, and nothing but the conscience of the party, so far as his personal property, answerable in an action on the covenant, can be considered as bound.

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This applies to the first part of the articles, which provides for an actual conveyance : with respect to the second part the same reasoning applies; but there the words clearly shew that the contract of the parties did not affect the lands specifically; for the contract was, that if the settler Thomas Kennedy should not be capable to make an actual conveyance, he should not do any act to prevent the estate going as the law would permit it to go: now, that being a contract expressly in default of a settlement being made, it would be extraordinary to construe it as if a settlement were made ; the intent therefore was that the estate should be taken by descent and not by purchase. According to the provisions of the gavelling law, it would go among all the sons, but they would take by descent and as heirs; and wherever a person takes by descent as heir, he must take subject to all the qualities and incidents of heirship. He cannot claim to take as heir and purchaser: so far as he can claim only as heir, he must take subject to the debts of the ancestor which bind the heir. He may have a right to be compensated out of the other property of his ancestor for the breach of this covenant, but he cannot attach a specisc right to this property as heir, discharged of the acts of the ancestor. And though with respect to covenants for the settlement of estates, courts of equity come in aid of the law (the law not giving a specific execution of the contract, but only damages for the breach of it, and equity supplying that defect by giving a specific execution): yet this is only according to the nature of the covenant: iic. when it is a covenani specifically to convey; the title to a

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