Page:The English Reports v1 1900.pdf/521

The respondent having laid out considerable sums in improving the premises, under an apprehension that he had a lasting interest therein, by virtue of the articles, applied to the appellants, sometime in the year. 1719; to grant him a further lease thereof; but they not readily complying with this request, he, on the 28th of January 1720, exhibited his bill against them in the Court of Chancery in Ireland, for a specific performance of these articles; and that if there was any such settlement, they might be obliged to suffer a recovery of the premises, in order to qualify themselves to make the said lease and agreement good, against the defendant John, and his issue male, and those in remainder after him.

The defendants by their answer swore, that at the time of making the lease and articles, the plaintiff had notice, that the defendant Walter was restrained by his settlement from making long leases; and the defendant. Walter insisted, that the settlement was made for a valuable consideration, and that he could make no lease of the premises in question, but for twenty-one years, or three lives; but that he was always ready to renew to the plaintiff, according to his power. And the defendant John insisted, that he was under no obligation to make any lease to the plaintiff, until he was actually in possession of the premises; and, that in case the same should come to him, he lay under no other obligation by the [189] articles; than to make a lease, and renewals in pursuance thereof, without suffering a common recovery to the prejudice of his issue, inheritable by the settlement.

On the hearing of this cause before the Lord Chancellor, on the 20th of November 1721, his Lordship was pleased to decree, that the defendants should execute a lease of the said three-fourths of the said lands of Killmacurra and Knockattin, to the plaintiff, pursuant to the articles, bearing date the 27th day of February 1707, and referred it to a Master, to prepare and settle a draft thereof; and it was further ordered and decreed, that the said defendants should qualify themselves to make good the said lease, by suffering a common recovery of the said lands, and that the plaintiff might make up and inrol his decree with costs.

But from this decree the defendants appealed; insisting (P. Yorke, C. Phipps), that the respondent, at the time of taking the lease, had notice of the settlement, as appeared by the articles, which were executed at the same time with the lease; and that the settlement having been fairly executed, for a good and valuable consideration, and the appellant Walter being thereby strictly tenant for life, with a power only to make leases for twenty-one years, or three lives; the Court of Chancery, on hearing that settlement read, ought to have directed him to make such lease only, as he had thereby power to grant, and that point ought to have been clearly and precisely determined by the Court, without any reference to the Master. That the appellant John was not bound by the articles, to grant any lease of the premises, until they should descend or come to him; and yet, by the decree, he was ordered to execute a lease immediately. And, as to the recovery, which the appellants were immediately to suffer, it would amount to an absolute forfeiture of the appellant Walter's estate, would be manifestly prejudicial to the, issue male of the appellant John, and yet could no way qualify or enable Walter to grant the lease. That the respondent did not apply to the appellants for a further term, pursuant to the articles, otherwise than by exhibiting his bill in the Court of Chancery; and before that time, he had in a manner finished his house, and other improvements, which were, in this case, the loss to be regarded, as the respondent had a lease for lives, renewable for ever, of Lord Ross's undivided fourth part of the premises, and might probably lay out his money, with a view of getting the house and improvements allotted to Lord Ross, whenever a partition should be made. Besides, the respondent was, by express covenant, bound to lay out £50 in improvements, and whatever he had expended above that sum was for his own pleasure and convenience; and the future term which the appellants were, in all events, bound to grant, might be a sufficient inducement for making larger improvements, than had been made on the premises by the respondent.

On the other side it was contended (R. Raymond, S. Mead), that the settlement was only a voluntary settlement, being confessed to have been made after marriage, without any previous articles of agreement, [190] or any money paid as a consideration for the same; but if the settlement was for a valuable consideration, yet the appellants ought to perform their agreement, because it was in their power