Page:The English Reports v1 1900.pdf/612

Nicholas, Lord Viscount Kingsland, deceased, being seised of the lands and warren called Conney-borough of Portmarnock, in the county of Dublin; by deed, dated the 28th of December 1723, demised the same to Richard Cogan, deceased, for 21 years, to commence from the 1st of May 1724, rendering yearly a rent of £50 and five dozen pair of rabbits. And after the death of Lord Nicholas, the respondent Henry Lord Viscount Kingsland, his son and heir, by deed, dated the 25th of November 1734, demised to the said Richard Cogan, the mill, and a house and lands belonging thereto, part of Portmarnock, for thirty-one years from the 1st of May then last, at the yearly rent of £11.

[323] This warren and mill lay contiguous to the estate of Luke Plunket, the appellant's brother; a part of which estate, called Carrick Hill, the respondent Wakely held of him by a fee-farm grant.

In 1735, Richard Cogan the lessee died possessed of both these leases; and by his will, dated in March 1728, and made before his taking the lease of the mill, he bequeathed his lease of the warren and lands held therewith, to his two sons John and James, they paying £10 to his son William; but the testator made no disposition of the surplus of his estate, nor appointed any executor.

Upon the death of Richard Cogan, John and James, his sons, became entitled, by virtue of the will, to the lease of the warren of Portmarnock; but the other lease of the mill being undisposed of, vested in Ann his widow, and in John, James, and William, his three sons, and Margaret Tiernan his daughter, as his next of kin, by virtue of the statute concerning the distribution of intestate's estates; but no administration with the will annexed was taken out by any of them.

From the death of Richard Cogan in 1735, till 1740, the warren and mill were jointly held and occupied by the three brothers, John, James, and William Cogan; and by an agreement, dated the 19th of April 1740, it was agreed between them, that John and William should be jointly entitled in moieties to the profits of the warren and mill, and that James Cogan should have rent-free, a house and a garden on the warren, together with the liberty of keeping there two cows and two calves, and also liberty to dig and draw sand from off the warren, or any part thereof; which privileges he accepted, in satisfaction of his pretensions or right to the profits of the warren or mill. In consequence of this agreement, John and William continued in the possession of the warren, and killed the rabbits there, and jointly took and enjoyed the other profits thereof, till the death of William Cogan in February 1741; and James continued in possession of the house, and from time to time enjoyed the other liberties and privileges, which he was entitled to under the agreement, after the death of William.

But the warren and mill being much too dearly rented, the Cogans, in 1740, declined in their circumstances, and the rent to Lord Kingsland run in arrear; and William Cogan having married the daughter of a tenant of Lord Howth, application was made, through his means, by Lord or Lady Howth, to Lord Kingsland, to accept a surrender of the then existing lease, and to grant a new lease at a lower rent; and in order to enable William Cogan to make a surrender of the old lease of the warren, and compleat an agreement for that purpose with Lord Kingsland, John Cogan, and Ann his mother, in January 1740, executed an assignment of their interest in the warren to William, without any consideration; such assignment being intended only for the purpose of his obtaining a new lease, which was to be in trust for John and James Cogan, and was to be enjoyed by the three brothers, upon [324] the terms of the before mentioned agreement: and before the execu-