Sadlier v. Biggs (United Kingdom)

S A ~ L I ~ R ‘U. BIGGS f1853-J IY H.L.C., 4334

between hini and them. It might be a very convenient piece of information for a

steward of the lord who had demised, as the case swtes, to A., that is to say, to

Lard Lumley, for one hundred yews, to know what those claiming under him had

been doing with the property. But what dealinp Lord Lumley had with persons

under him, was a matter not within the province of t

Norfolk to enter upon, and this entry, therefore, can afford nog evidence, either on

the ground of its being an entry made by him in discharge of his duty, or as proof

of reputation of the fact which he purport8 to record.

Under these! circumstances, I confess I think there can be no doubt. whatever that

the learned Judge was quite justified in rejecting the evidence. And I come to that

conclusion, having considered the case very attentively, from the consciousness that

it was impossible: not to feel that the plaintiff in error laboured under very great

d ~ ~ c u l t i e s , having had the opinion of all the Court8 against him, and having my-

self been one of those who had in a former stage: of this business esprwsed the

opinion to which I now move your Lordships to assent. I have listened to the

a r g u ~ e I ~ t . with perfect candour, and if I could have been convinced to the contrary,

I sbould have been ready to be so convinced. Rut my opinion is unchanged, and 1

niust add that I do not think it is a case in which the Houae has any reason to regret

that the rules of lsw ccErnpel us te this conclusion, because a n ~ h i n g more dangerous or

more to be deprecat~d than that prties should look up old entries in the reign of

Elizabeth or James I., for the purpose of disturbing, by such evidence alone, the

state of things which has prevailed from that hime to the reign of Queen Victoria,

can hardly be imagined. I thers[4s]-fore move that judgment be given for the

defendant in error.

Lord Brougham.-I entirely agree with what has fallen from my noble1 and

learned friend. I will only add that. this, which appears to be a memorandum

made by a steward-we will take him to have been a steward-of the Duke1 of Norfolk,

i s no evidence to shaw that these lands were parcel of the manor of Wayfing. The

question in this action being parcel or no parcel of a manor, it is not sufficient

evidence of reputa~ion that ths lands are m e n ~ ~ o n ~ d in an entry as having been the

subject of a demise in some l a w under that description.

It was ordered, that the judgment of the Exchequer Chamber, affrming a judg-

ment, of the Court of Exchequer for the defendant in error, should be affrmed, with

costs. Lords’ Journals, 22nd June, 1853.

[4%] THOMAS SADLIER the Elder, and Anotlier,-l$~~eZZalzts; SAMUEL DICESOX

BIGGS,-Respondent [July 1, 4, 5, 18533.

1859, 7 H.L.C. 650.1

Leases-Zteneurals-Reyister~d .Xrmorinl 01 ~ e e ~ - ~ v ~ ~ e q ~ ~ ~ .

[Mews’ Dig. vi. 531, 791 ; vii. 1502 ; viii. 828. See ~ a ~ e r ~ r ~ v. Pennell,

S., on the 5th jaauary, 1746, being tenant in fee simple of lands in T~pperary,

executed an indenture, which was, two days afterwards, registered under the

Irish ~ ~ i s ~ r a t i o n Acts. The ~ e ~ ~ o r i a l epresented that S. had, by the in-

denture, demised, or agreed to demise, these lands to C. for three lives, therein-

named, with ‘‘ a clause of renewaI after the expiration of said lives therein-

befors~ent ioned~’ provided that C., his heirs, &., should, ‘< within six

months from the death of the last of said three lives, nominaki such life or

lives as he would have inserted,” and pay all rent, and “the sum of &11 7s. 6d.

for adding or renewing such life1 or lives for ever.” The1 memorial was signed

by C. alone, and he registered it. In February, 1750, S. executed a settlement

in c o n ~ p l a t ~ o n of marriage, by which he made himself tenant for life

only in the estate comprised in the indenture of 1746. In March, 1750, he;

executed a lease to C., in xhich the indenture of 1746 was recited, and in

consequence of svme ohsn,ps in the lands a change was made in the rent.

The lease recited the i j ~ d e n ~ u r e as a demise to C . for three lkes and the

longest liver of them, with 8 covenant to “ renew the same for ever, on

53 1

IV R.L.C., 436 SADLIER ‘U. BIGGS [I8531

p a ~ e n t of Sl1 7s. 6d. for renew~ng the same on the fall of every life, within

six months next after the fail of ea& life.’’ The ~ u ~ e ~ ~ ~ ~ in the lease was

for the same three lives ; and S. covenant& khat, ‘‘ upon the death. or failure

of the aforesaid life or Iiva, or any or either of them ” (naming them), and

upori C., his heirs, etc., paying “ &e sum of Bl1 7s. 6d. above the annual rent,

within the space of six calendar months, and i r n n ~ ~ i a ~ l y after the dea& or

failure1 o f such life,” and on nomination, etc., i i S. and his heirs,” etc.,

would add the life so nominated ; “ and so in like manner from time to time

successively for ever thereafter on the failure of every other several life or

lives in the said lease o r thereafter to be nominated.” Renewals bad, from

time to time, been made by the successors of S. i n the s tab , sometimes

after proceedings in Chancery to compel the same, sometimes without such

proceedings ; but in 1845, G., the d ~ c e n d a n t of S., having absolutely refused

to renew? a Bill was filed against him by B., who had become [436] possessed

of C.’s lease. The Bill prayed for a renewal a~cording to the lease, which

B. alleged to have been made in confoi.mity with, and under the a ~ l ~ g a t ~ o n of,

the indenture of 1746. This indenture could not be produced, but the

memorial was tendered and received in evidence. The defendank alleged

that the lease was ineEwtual to bind the inheritance, as i t was niade by a

person who was, a t the moment of executing it, onIy tenant for life, and he

contended that there was na legal evidence of the indenture of 1746. He also

relied on the difference between the terms of renewal contained in the in-

denture and those contained in the lease : -

Held, aErming the judgment of the Court below, that the plaintiff was entitled

to the renewal as prayed; that the memorial was properly admitted as

secondary evidence of the indenture; that that indenture was to be treated

as an original lease; containing H, co~enant, under the obl iga~~on f which the

lease of 1750 was executed ; that the obligation entered into in 1746 being by

the tanant in f ee simple, his ~ e ~ o ~ a n c e of it in 1750 was valid, ! although he was then only tenant for life; and that the acts of the successive

tenants of the estate, though. not evidence to prove the existence of the covenant,

became, Then the covenant had been othemim proved, evidence of the con-

struction which the parties interested had put upon i t :

Upon one of the occasions of renewal, the tmiant for life against whom a Bill

had been filed was an infant. The Court of Chancery in Ireland ordered his

gwtrdian to execute a lease in conformity with the covenant contained in

the deed of January, 1746 :

Per Lord St. Leonards, that order was a u t h ~ ~ i s e d by the Irish statute 11 Anne,

c. 3.

’

This was an appeal against a decree of the Court of Chancery in Ireland, made in

U suit which was origin all^ i n s t i t u ~ d in the Court of Exchequer in equity there, and

which was afterwards, under t.he provis~or~s of the 13 and 14 Vict., c. 51, ~ r a n s f ~ r r c ~

to the Court of Chancery.

The respondent, in 1845, filed a bill, which was afterwards amended, and to

which the younger of the appellants was then added as a party, against the appel-

lants, in order [e71 to compel them ta g r m t a renewal of a lease of certsin lands

held by the respondent under them, according to the covenants and conditions con-

tained in a lease originally granted on the 2nd of March, 1750. The bill, as amended,

stated that Charles Sadlier was seized, as in fee, of certain lands called BeIlevue,

etc., and, by certain indented articles, bearing date1 the 5th day of January, 1746,

and made between the said Charles Sadlier of the one part, and John Chawner,

of Ballyguider, in the said county, of taha other part, Charles Sadlier demised, or

agreed to demise, to John Chawner, his heirs, etc., the towns, lands, and preniises

described in Land demised by the indenture of lease next mentioned, for and during

the lives aad life of John Chawner, Daniel Alt, and Joseph Palmer, and the sur-

vivor of them, at the yearly renk of S92 I&., papble as therein mention^, alld in

which said articles was c u n ~ i n e d a covenant for the perpetua~ renewal thereof.

That the respondent has not in his possession or power the said articles, but

believes same have been long since lost or destxoyed, but a memorial thereof, duly

532

SAD LIE^ Q. BICGS [1853] IT H.L.C., 438

perfected by said John Chawner (Chawner’s name alone was signed to the memorial.

His signature was duly attested by two witnesses), was duly registered, in the proper

oEce for registering deeds in Ireland, on the 7th day of January, 1746, and which

said articles are stated in said memorial to c o n t ~ n “ a clause of renewai, after the

expiration of said lives therein- fore mentioned, provided said Chawner, his heirs,

executors, administrators, and assigns, should, within six calendar months, to be com-

puted from the death of the last of the said three lives, nominate and appoint such

life or lives as be or they would have inserted in any lease to be made thereof, and

paying as, well all rent and arrears that should be due far the half-year after the fall

of such life, as the sum of 2.11 7s. 6d. for adding or [438] renewing such life or lives

for ever,” as by the said original articles, or a counterpaxt thereof, in the possession

of the defendant, Thomas Sadlier, had the plaintiff the same to produce, or by the

said memorial, or an atbstad copy thereof, when produced and proved, will more

fully and at large appear.

The bill then alleged that, by lease and release dated 2nd March, 1750, between

the said Charles Sadlier of the one part, and the said John Chawner of the other part,

after reciting a lease by Sadlier’s father, dated 1st October, 1724, to John Chawner

and Daniel Alt, and a lease from Colonel Thomas Butler, and that by the death of

Sadlier’s father, the fee-simple and inheritance of said lands descended to said

Charles Sadlier, pmty thereto, and his heirs, and that said Charles Sadlier, party

thereto, by the articles of January, 1746, had demised to said John Chawner and his

heirs certain lands therein described, to hold the aforesaid towns, lands, etc., for and

during the three lives therein named, and the longest liver of them, a t the yearly

rent of 2 9 2 10s. with a covenant to renew the same for ever, on payment of 21 1 7s. 6d.

for renewiiig the same on the fall of every life within six months next after the fall

of each life, m d it was) by the said indenture witnessed, that the said Charles Sadlier,

party thereto, in pursuance of said indented axticles, and for the considerations

tiiesein mentioned, demised, etc. unto the said John Chawner, his heirs and assigns,

All that, etc., excepting thereout unto Charles Sadlier, his heirs, etc., all mines, etc.,

and also full and free liberty to hunt, hawk, fish, and fowl, etc. To have and to hold

all and singular the said dernised premises, with their appurtenances (except as before

excepted), to the said John Chawner, his heirs and assigns, from the first day of

November then last past, for and during the lives of said John Chawner, Daniel Alt,

[43$] and Joseph Pahner, and the survivors and survivor of them, and for and during

the natural lives and life of all and every such other person and persons as by virtue

of the clauses arid covenants for perpetual renewal thereinafter contained, should,

from time to time, successively and for ever thereafter be added to said demise, he, the

said John Chawner, his heirs and assi,ps, yielding and paying therefore and there-

out unto the said Cliarles Sadlier, his heirs and assigns, the yearly rent or sum of

290 8s. (the SUM had been altered by agreement, Sadlier having lost his interest in

a small part of the p~operty), then currency, payable half-yearly, etc. ; and Charles

Sadlier did thereby, for himself, his heirs, and assigns, covenant, promise, and agree,

to and with John Chawner, his heirs and assigns, that upcm the death 01- failure of the

aforesaid life o r lives of the said John Chawner, Daniel Alt, and Joseph Pahner, or

any or either of them, and upon the said John Chawner, his heirs or assigns, first

paying or causing to be paid unto the said Charles Sadlier, his heiw or assigns, the

sum. of 211 7s. 6d., then currency, over and above the annual rent ther%in-before

reserved, within the space of six calendar nronths next, and immediately after the

death and failure of such life, and upon the noniination of the life of any other person

by the said John Chawner, his heirs or assigns, within the said six months, to the said

Charles Sadlier, his heirs or assigns, to be put or inserted in the place or stead of the

person so happening first to die as aforesaid, that then the said Charles Sadlier, his

heirs or assigns, should, and would, within the said six calendar months from the death

of such person so. happening first to die as aforesaid,add sad insert to the time and term

of said lease the life of such person SO to be nominated in the place and stead of the

person so happening first to die as aforesaid, declaring the life so added in lieu of the

life so falling, [440] to be, with the life and livea then in being, the three lives during

which the said estate should be then to continue, and SO in like manner from time to

time successively for ever thereafter, on the failure of every other several fife or livepi

in said lease then nominated, or thereafter to be sucoessiveIy n o ~ i n a t ~ as afQreaaid,

533

Ty E.L.C., 441 SADLIER 21. BIGQS Cl8531

and upon the like payment of t b sum of &I 1 7s. 6d., then currency, and upon the like

nomination of any other life successidy to be added in lieu of every several life so

failing as aforesaid, within the space of six calendar months as aforesaid, that the

said Charles Sadlier, his heirs or assigns, should, and would, within the said six

months next after the failure of every other such several life, so to be nominated as

aforesaid, add and insert to the term of said lease, from time to time for ever, the

several life or lives of such person or persons to be nominated in the place and stead

of the life or lives of the several person or persons so successively happening to die, as

aforesaid, and which indenture of deniise was duly registered in the proper office f o r

registering deeds. in Ireland, as by the said indenture, now in plaintiffs possession,

ready to be pronounced and proved, will more fully and a t large appear.

It appeared by the s ~ t e m e n t s in the bill and answer, and by the evidence in the

cause, that on the 1st of Februwy, 1750, Charles Sadlier executed a settlement in

con~mplation of marriage, by which the fw was vested in other persons for the

purposes of the intended marriage, and he became only tenant for life in the re-

version. The marriage-settle-

rnent itself was executed on the 5th June, 1751. The lease which had been executed by

C. Sadlier to Cha;wner in March, 1750, waa not registered till the 1st of August, 1752.

Charles Sadlier died in 1756, and the est?ate then vested [441] in his son Thomas

Sadlier, ail infant, and Chawner’s interest having been transferred to Benjarnin

Biggs, and a life having dropped, Biggs, upon the 8th of February, 1766, exhibited

his petition to the Court of Chancery against Thomas SadIier the infant, and the Rev.

Ralph Grattan his guardian, praying to be declared entitled to a renewal. An order for

renewal was made on this petition, and the renewal was ordered to be executed by the

guardian of the infant on the infant’s behalf, and a lease was duly executed by the

guardian in 1770, in compliance with that order. The interest of Benjamin Biggs

afterwards became vested in George Biggs, and another life having dropped, he, in

1779, filed his bill against Thomas Sadlier, who had in the mean time attained his

full age, praying for a renewal. The claim was a t first resisted, but T. Sadlier, on

the 6th of March, 1782, submitted tt> execute a renewal, and this renewed lease was

made for the life and livea of three persons therein named, and the survivor of them,

and contained a covenant by T. Sadlier for the perpetual renex-a1 thereof. Other

renewals took place on the 21st November, 1797, and the 28th May, 1814. This last

renewal was executed by the father of the elder appellant to the father of the r e

sprtndent. On the 30th of April, 1844, the appellant served on the respondent’s elder

brother (then the tenant in possession) ~b notice to quit the premises included in the

lease of 1750; and on the 22nd of August, 1844, the respondent, who had then come

into possession, served on the appellant a notice to execute a renewal of that lease, by

substituting a life in the place of that of the respondents father, deceased, and tendered

the rent up to the last rent-day, and also the renewal fine. The renewal was not

exewted, and on the 4th of June, 1845, the respondent filed his bill in the Court of

Equity Exchequer in Ireland against the, appellmt, a.nd t.hereby [a21 prayed that the

appellmt might be decreed to execute renewal, pursuant to the covenant cctntained

in the original lease.

The appellant, in August, 1845, put in an answer, relying on the certain grounds

of defence which were afterwards, with others, included in his answer to the r+

spondent’s amended bill. One of these grounds of defence was, that his eldest son,

Thomas Sadlier the younger, was the first tenant in tail, in reversion, to the lands

expectant on his, the lifeestate of the appellant.

The respoadent filed an amended bill in May, 1846, by which he made Thomas

Sadlier the younger a party defendant at3 first tenant in tail of the reversion. He also

put in issue the articles of the 5th January, 1746, alleging their loss, and relying on

the memorial thereof, executed by Chawner, and duly registered on the 7th January,

1746, in which rneniorial an abstract of the alleged covenant for perpetual renewal,

as contained in the articles of the 5th Jmuary, 1746, was set fol-th. The respondent,

in the said amended bill, also put in issue an action of ejectrnent brought. in

~ i c l ~ a e l ~ ~ a s Term, 1844, in which action the respondent had given consent for a

judgment, under the belief that the renewal of May, 1814, which had been exmuted by

a h n a n t for life only, afforded no effmtud defence at, law against the legal title of

Thornas Sadlier the elder. The amended bill prayed that the respondent might be

534

This deed was registered on the 10th of June, 1750.

SADLIEIL 9. BIGGS [I8531 IV H.L.C., 443

declared entitled to a renewd of the lease of the 2nd Xarch, 1750, p u r s u ~ n t o the

covenant cootained in the &&Ass of 5th January, 1746, and in the said leme

itself.

The appellants, by the answer to the amended bill, relied on additional grounds

of defence: first,they denied thatthe articlss of the 5th January, 1746, had ever existed,

or if they had, contended that upon the true construction of such [#&I articles they

did not contain any covenant for perpetual renewal, and admitting that a memorial

to the effect stated in the bill existed in the office for registration of deeds in Ireland,

the appellants relied as an objection against such memorial being received in evidence

against him, that it never had been executed by Charles Sadlier the covenantor ; and

that the affidavit as to the execution of the alleged articles and memorial was made

by Henry Chawner, the son of John Chawner, and who had a direct interest in

sustaining &e alleged articles ; secondly, that 8.6 the memorial was not executed by

Charles Sadlier, m d as the possession of the demised premises by John Chawner,

and those claiming under him, was capable of being explained uEder and as referable

to the lease of the 2nd March, 1'750, independently of the alleged articles, that the

memorial afforded no sufficient evidence of the existence and contenta of such alleged

articies against the appellant, claiming under the marriage settlement of the 1st

February 1750, by which, and before th0 e ~ ~ u t i o n f the lease, Charles Sadlier had

become tenant for life only, in the reversion; thirdly, that even supposing the

memorial to be admissible against the appellants as evidence of the existence and

contents of such alleged articlw, yet the clause or covenant for renewal contained in

i t was not a covenant for perpetual renewal, but was a special covenant for a single

renewal only, after the death of all the lives in the alleged articles named, that the

clause was not ~ u ~ c i e n t l ~ certain as to the terms of any renewal, except a single

renewal, or as to the amount, of the fine to be paid on aay further renewal, or whether

a fine WBS to be paid on the further renew& of mch new life, or for three new lives;

also that all thR lessors in all the subsequent renewals were, by virtue of marriage

settlements under which appella~ts claimed, tenants for life anly, Tvithout any power

of leasing E4441 beyond a limited period, and therefore that they were not bound by

the adinissione or statements made by any of these parties, or by the execution by

those parties of the several renewals.

Tlie a p p e l I a ~ ~ t ~

objected to the memorial of 1746 being received in evidence on the ground set forth

in the answer to the amended bill. The objection was overruled, and the memorial

admitted in evidence. On the 15th of Nocvember, 1847, a decree was made (10 Ir.

Eq. Rep. 522) declaring the respondent ontitled to a specific execution of the articlm of

the 5th January, 1746, and to a renewal of the lease of the lands comprised in the

said articles, a t the yearly rent of &90 Ss., and a renewal fine of &ll 7s. 6d. on the

fall of each life, and so toties quoties for ever on the fall of m y one life. And it was

referred to the Remembraneer to settle the form of a renewal, and to ascertain whst

lands were included therein. This last direction was occasioned by a question

whether certain lands called G u ~ m u n g a were a sub-denomination of the lands of

Bellelevue, or" were so reputed at the time of the exwution of the articles in January,

1746. On the 4th June, 1850, the Chief Remembrancer made his report, stating the

amount due for rent and fines, and declaring Gurtmunga to be part of the lands

included in the articles. On the 11th June, the appeIlants filed exceptions to ths

report, and the equity jur isd~ct~on of the Court of Exchequer in Ireland having been

in the mean time, by the provisions of the Act 13 and 14 Vict. c. 51, transferred to the

Court of Chancery there, the exceptions came on to be heard in that Court, and by an

order, dated 5th February, 1851, the except'ions were overruled. It was this order

tht was appealed against,.

[4&] Mr. Roundell Palmer and Xr. Rovill for the appelIant~.-T~ie respondent's

case now rests on the articles of January, 1746. But there is no evidence of those

articles except in the memorial. That memorial is not admissible in evidence ; but

if it was, it would not sustain the respondent's case, for it does not cmtain terms oon-

sistent with a claim for a perpetual renewd. Amuming ik, however, to be evidenwL

the rule that such a covenant " must be clesr, plain, and distinct, and in terms that

will not bear alty other construction " (per h r d kougham, Brown v. T i g h ; 2 Clark

and F. 396-4161, must be applied. Applying that rule to the const,ruetion of the

535

The cause was fully heard, and evidence received on both sides.

IV H.L.C., 446 SADLIER v. BIGGS [1853]

articles here, the only words which are said to constitute the covenant for perpetual

renewal are the words ‘‘ for ever.” But i f the whole of the deed is looked at, it is clear

that those words only refer to the three lives on which the lease of 1750 is granted.

The words are, ‘‘ ths lives. before-mentioned,” and those lives are the livss speoifically

mentioned in the deed. The renewal, therefore, related only to ~t renewal after the

expiration of those three lives, and not a t any future time. So that even if the memo-

rial should be held to be admissible in evidence, it will not, on a fair construction of

its terms, support the claim here made.

It is objectionable, first, be-

cause i t is only signed by one of the parties to the deed supposed to be registered. A

registered memorid can only be evidence against those who registered it, or those

who claim under them : Doe v. Cbiford (2 Car. and Kirw. 448), ~ ~ l l a s t ~ ~ v. ffa&ewell

( 3 Han. and Gr. 297 ; 3 Se. N.R. 593) ; arid here the lessee alone had executed the

deed, and he alone registered it. To allow a different rule would be te create great

opportu-[&S]-nities for fraud. ScdZg v. ScuEZy (10 Ir. Eq. Rep. 557) is not a clear

authority the other way. The covenant was

niada on m a r r i ~ ~ e , and the n i a r r ~ a ~ having taken place, the con~ideratiQn for the

covenmt was conipletely executed. Besides which, the question there vas, not whether

the articles existed or not, but whether the wife had riot taken under the will a benefit

in sat~sf~ct ion f those articles. In Iike manner, in ~ 3 e y ~ ~ ~ v. ~ c ~ e r r ~ o ~ € (1 Dru. and

Wal. 198), tlie possession of the property had gone with the articles, the memorial of

which was admitted in evidence. It is submitted, there-

fore, that the mere registration of an instrument cannot render the memorial admis-

sible in evidence unless the existence of that instrument can be legally proved, and

especially that the registration of an i n s t r u ~ ~ e ~ t cannot make it evidence for the party

who alone has signed it. It is not a declaration against his interest, but in support% of

his interest. The registry could only be evidence of the date at which it took place,

not of the contents of the instrument. The men~orial might show that such a docu-

ment had existed ; but certainly could not show any more. The principle adopted in

The Q u e m v. 231iss (7 Ad. and EL 550), and in Doniel v. Ivorth (12 East. 372), and by

this House in Doe d. ~ a d ~ ~ c & v. ~~~~~c~~~ (ante, p. 425), would exclude this niemo-

rial, for the memorial is not executed by any one who had authority, or was bound by

duty to make the declarations it eontained.

[Lord St. ~o~iards . -S~~ppose th loss of an original deed proved, as the original

must be produced and indorsed a t the time of registration, the question would be,

whether the register would not be evidence of the contents of the original deed, unless

it was shown by other nieans that [447] there was a discrepancy between them, especi-

ally if i t was found that parties had been acting for upwards of a century in obedience

to the provisions of the supposed instrument.]

It would be impossible to resist the force of the question thus put except in a case

like the present, where the discrepancy i s clearly shown by the fact that the m e ~ o r i a l ~

and the lewe, s u p p ~ e d to b~ made in accordance with the indenture, of which the

memorial is the register, disagree with each other. One provides for a %e payable on

each life, the other on the last of three lives. If they had agreed together, it might

ha-ve been an argument in favour of letting in the memorial, especially if the acts of

the parties had been in accordance with it. That i s not so here, and the inernorial is

not admissible. Under these circumstances, tw, the subsequent dealinp of the parties

are of no value. They cannot bind any one by their own proper force, or as the acLq

of parties interested, for they are the acts in each. instance of mere tenantcf for life,

who could not bind the inherittancu, and who received an immediate benefit in the fines

paid, which fines were in diminution of the profit to the inheritanca. This ca#e, there-

fore, does not fall within Cooke v. Booth (Cowp. 819), even if that decision had never

been doubted ; but comes within the principles laid down in the case of Baynham V.

Guy’s ~ ~ s ~ ~ t a Z (3 Ves. 295), where i t wa~3 expressly decided that a legRI instrument

is not to be construed by the acts of the partics. The same rule was held in de^

v, b ay (9 Ves. 325), ~ n d in iVa@8 V. Smith ( X Ir. Eq. Rep. 119). Lord Plunkett, in

the course of the argument there said ‘‘ Whether seised in fee or not, their acts could

not construe the covenant.”

The law is opposed to binding the inheritor of property E4483 by the! covenants of

his ancestor, except where there are clear words to create the obIigation, for it leans

536

But this memorial was not admissible in evidence.

There the c~rcumstances were peculiar.

That is not the case here.

SADLIEK. U. BlGGS [1853] IV R.L.C., 4-49

against a construct~on for perpetual renewd unless clearly intended. ~ ~ y n ~ u ~ v.

Gf&s ~ ~ ~ ~ ~ t ~ l and ~ g g ~ e ~ v. &zy. t^ v. ~~e~~~~ (2 Sch. and Lef. 549) is to

the same egect. The words " for ever," in this instrument, are really disconnected

from the covenant for renewal, and are senseless, or else they meant that 80 Iong a@ the

grant or lives he will renew, on the conditions therein stated. In ~~~~~ v. Ford

(Batty's Rep. 834) there was a covenant in which the words were very strong; but

th6 Court held that they did not amount ta a. covenant for perpetual renewal, and re-

fused to permit a prior lease to be resorted to for the purpose of expounding the

covenant. Tliat case, and Brozcn. v. Tighe (2 CI~brk and F. 396), and Sntyth v. I\'angZe

(7 Clark and F. 405), show that even in Ireland, the leaning of the law i s agaiust

perpetual renewal. Bere the words do not amount to a covenant to renew; but to a

covenant that, so often as the lease shall b~ renewed, the lessee shall pay. If the con-

s ~ u c t i o n here i s that there, is to be a. renewai for ever, by reason of the words a t the

end of the clause, then itis clear that there are mutual rights of lessor and lessee. But

then the former cannot, according to the pretended articles of 17.1-6, as set forth in the

memorial, claim a fine till all the three lives have fallen, and then he can only daint

one fine. Pet such was not deemed by the parties who executed the original articles

to be their true meaning, for in 1150, only four years after the execution of the

articles, all the game parties being still alive, a new lease wag executed, with the same

lives in it, though it differed from the article@ of 1746 in many important respects;

and this new lease was, besides, perfectly unnecessary, if the parties claiming as lessees

were already in possesion [449] by virtue of a valid lease of 1746. This is a, fact

which shows beyond all doubt that the interest, whatever i t was, which had been created

by t#he articles of 1746, had then ceased. If so, then the whole claini of tliu present re-

spondent rests upon the lease of 1750. If the

respondent's claim rests on the lease of 1750, then the decree af the Court below cmnot

be a%rmed; for that is a decree for specific. execution, not of the lease of 1750, but of

the articles of 1746.

Now that lease was invalid, so far &R: any covensnt for renewal was concerned ;

for before its e ~ ~ u t i o n CharIes Sadlier had executed a m a r r i ~ e settlenient, by which

he had parixd with his interest in the fee, and had become merely tenant for life of the

estate. He had not, therefore, any power to make a lease with 8 covenant for per-

petual renevval ; he could not bind the inheritanc~, and his covenant to do so, even if it

should receive the construc~ion contended for on the other side, cannot be enforced.

The Iease made by Thomas Sadlier, in 1782, ie equally without force as a valid

instrument; for in 1773 he had executed a settlement, in contemplation of marriage,

by which he had made himself only tenant for life of these lands, and had ceased to

posseas any power to bind the inheritance. The same thing appears to have occurred

in several other instances ; and the successive owners of the lands having been only

tenants for life, they were incapable of making any valid renewal of a Lease of this

kind,

The So~ieitor-~eneral (Sir R. Bethell) and Mr. Glasse, for the respondents, were

not called on.

The Lord Chancel~or.-In this case your bordsh~ps have heard from the Counsel on

behalf of the ~ p p e l l a n ~ a statement of the grounds upon which they rest their case;

and after listening to their a rgu-~~ol -ments , I am prepared to advise your Lordships

that it is not necessary to c d l upon the respondents, because it appears to me that their

case is established beyond all r e a ~ n a b ~ e doubt, and that nothing which has been

urged upon the past of the appellants has at all tended to induce the opinion that the

decree pronounced below is in any respect erroneous.

[His Lordship here stated very fully the circumstanws of the case.]

The case, therefore, is, that there has been for now more than a century a c ~ n t i n ~ e d

line of renewals, from time ta time, since 1750, and the respondent seeks to have

a renewaI now decreed in his fayour, and a decree to that effect has been made by the

Court of chance^ in Ireland.

fa order to show that the plaintiff was not entitled to have that renewal, the case

re1isd upon by the appellant is this : he says that at the time of the original lease (that

which I hftve treated as such), the lease of the 2nd March, 1750, Charles Sadfier, who

made it, and entered into the covenant for perpetual renewal therein contained, was

not. the owner of the feesimple, and therefore not capable of binding the parties who

537

That gives rise to another objection.

IV 3.L.6, 461 SARLIER V. XGGS [I8533

succeeded a f ~ r ~ a i . d s to the property-that he was in truth only tenant far life; and

that fwt was sought to bc established by showing, that a month before the execution of

that lease, namely, on the 1st February, 1760, Charles Sadlier had made a marriage-

settlement, whereby he had settled, inter din, the lands in qutsstion upon himself for

life, with remainder to hie first and other sons in tail, sa that being only tenant for

life, he could not enttsr into any valid covenant which should bind the remainder man

or affect the inheritance. ?%e appellant further contends, that that has h e n the sort

of estate existing all along, that no person who has evtcuted any one of these renewals

had any power so to do.

True it is that Charles Sadlier, at

the execution of the lease of 1750, was only tenant for life; but still h~ wm not in-

~~ccurntely descr~bed, as between himself and the lessee, as being the party having the

fee-simple ; because, up to within a month before the time of his executing the lease

he had been seised in fee, and four years previously he had bound himself by what may

perhaps be d ~ i ~ a ~ d as a lease (but which wms to have bsen treated as an i ~ p e ~ f ~ t

leaae, because it contained a covenant that the parties would make a perfect lease

~ f t e r w ~ d s ) , to grant the lease in question, so that although he was legally, in March,

l750, only tenant for life, still he m m tenant for life subject to a right on the part of

the lessee by an obligation, entered into before he parted with the fee-simple, to make

ti perfect and a renewable lease. The question is, whether that i s made out to be the

case or not? It appears to me to be abundantly

shown that that is perfectly and satisfactorily made out. The lease of the 2nd March,

1750, appears as a lease between Charles Sadlier of the one part, and John Chawner of

the othe’r part, and the farmer demises to the latter, reciting the artielm of agreement

of 1746, with B clear covenant for renewal.

Now that is a covenant made by a party who is truly said to have been at the time

only tenant. for life ; but he there says he made i t pursumt to an o b ~ ~ g a t i o ~ under

which he had come by virtue of the previous Is that ar not made out to be

true In order to show that it is true, I will not, in the first instance, look backward

to what evidence there is ab ante of the existence of that prior instrumcnt ; but I will,

by the most legitimate mode of remoning, go down to a future time, and sets whether

what the parties have been doing during the last century, for I [452] may call i t so, i s

or not consistent with any other h ~ o t h e s i s than that there maa an obligation upon

What is the first thing that we see took place after this instrument of 17502

Charles Sadlier, the party to the deed of 1750, died in 1756. Two of the lives fell in

about the beginning of the year 1769, at the time of Thomas Sadlier, who was tenant

in tail, then in posseseion, was still an infant. An application was made to the Court

of Chancery in Ireland to compel him or his guardian to execute a, renewal of the

lease. That could only have been upon the footing that for some reason or other the

covenant, bound him. Now the covenant did not bind him if i t was only a c o ~ ~ n a n t

made by his father as tenant for life; but i t did bind him i f the covenant was, as it

represent8 itself upon the face of the i n ~ t r u ~ e ~ t , a coveiisnt which he was b u n d to

enter into by reawn of a prior obligation c ~ n t r ~ t e d by him when he wastenant in fee

simple. It is plain that the view taken by the Court of Chancery in Ireland was,

that he was bound by that ubligation, because the Court ordered the guardiam to

execute a renewal. Some time before the year 1782, another life dropped, namely, the

life of Daniel Alt, Now, what were the rights of the parties then, supposing nothing

except that renewal to have happened between 1750 and 17821 Supposing nothing

else bad happened, we have Thomas Sadlier (who had then arrived at his full age), the

son af Charles Sadlier, being th6 absolute owner, for so I must call him, of the property,

since he was tenant in tail in possession, applied to that he might execute a new lease

in pursua~ce of his father’s covenant, and pxoceedings were instituted to compel him

to do $0. It does not appear that those proceedin~s ended by a decree j but, as far the

tenant was concerned, they ended in that which was just as goad to him as any decree,

[&3] namely, in the fact that Sadlier was advised to acquiesce, and, being tenant in

tail, he executed a lease pursuant to his father’s eovenant, reciting it and treating i t

a8 a valid covenant, and as one which bound him.

Now I am aware of the

nrgument which was pressed upon your Lordships, that he was not raatly tenant i n

538

.[&j$] My Lords, that ease is met in this way.

If i t is, there is an end of the appeal.

[His Lordship read it.f

reement.

1 Charles Sadlier to make the lease in question.

My Lords, I have said he was tenant in tail in posse~ion.

SADLIER V. BIGGS [1853] XV H.L.C,, 464

tail: in possesion, because he had, in the mean time, dealt with the property by enter-

ing into marriage articles in 1773, so ati to make his position no longer that of a

t e n w t in tail i n possession. He had, as i t appears, executed articles before his

marriage, in the sense that he had signed somc paper ; but he was an infant at the

tinze, for you end in the proceeding instituted against him previously to his granting

the lease of 1782, a bill being filed against him, that he by his answer admits that he

attained his age of twenty~ne years in the year 1774. Now the articles are dated i n

the year 1773 ; he was therefore a minor at that time, and no articles could bind him

as to his inheritance a t all. He was therefore legally tenant in tail subsequently to

that obligation, so far as it was an obligation. He had bound himself upon his

marriage, by certain articles, to make a settlement of the property under which he

would no longer have been tenant in tail; but even if the articles had been executed

by him after he had attained his age of twenty-one years, I do not see how they could

have affected the case. We have no evidence of what these articles wwe, except from

the memorial of them. I do not stop to inquire whether that is legitimate evidence

upon the subject or not; I will assume it to be legitimate. We have a niemorial of

these articles, which wati put upon the register shortly after the execution ; and all

that appears upon the memorial is, that he had by the articles stipulated tQ secure a

jointure to his wife, and created a trust term of two hundred yGars; I do not know

14541 far what reason, unless, as it appears afterwards, for the securing a portion to

his younger children. But all the evidence we have of any articles of agreement, is

of articles which do not affect the ultimate right of the tenant i n tail. It appears to

be perfectly clear that, being tenant in tail, he executed a renewal lease in 1782 to the

holder of the existing lease, Benjamin Biggs; doing so by a recital which states his

obligation to do it by reason of that which had been stated as the obligation in the

two preceding instruments, namely, the deed which had been executed by Charles

Sadlier.

E e was a t this time, certainly, only tenant in tail ; but it appears by the evidence

that, in the year 1195, upon the coming of age of his eldest son, or

some time after his eldest son had come of age, he made! a se~lement of

the property, with the concurrence of hie eldest son, and in order to give complete

effect to that settlement he covenanted to levy, and afterwards did levy, a fine, and

suffered a recovery to ensue to the uses of that settlement ; but saving and confirming,

in words, all the previous leases made by parties who had perfect power by their

settlements to make them. There was, therefore, express con~rmation Of this lease :

but I think that, ix~dependently of that, it is quite clear, upon ordinary principles, that

the lease was binding. A party being tenant in tail, and making at lease for a valu-

able consideration, and afterwards levying a fine, and suffering a recovery, would by

these aots do that which would enure to confirm that lease, even if there had not been

these words. But those words appear to me to put it beyond all doubt, that it was his

intention to confirm it as far as he was able so to do. That is the way in which it

stands. The result is, that through-

out all this long period of time, about a century, the pwrties have been all dealing upon

the footing that one was entitled to claim, and fa51 the other was bound to grant,

renewals of leases which, if the contention now insisted upon by these appeflantte waa

well-founded, might always have been successfully resisted by the part37 that wag re-

quired to grant the lease. It was evidently much tu the interest of erery m e of these

partiw to do scl; because I see by the different instruments given in evidence. the

sort of c~nsideration that was paid from time to time ; there was one case in which

;E5000 were paid for the leasehold interest, 80 that the sum of 211 7s. 6d, is wholly

absurd as being the value, or anything like the value of a renewal, and the renewal caa

be accounted for upon no other ground but that of its being made under the force of

the obligation. It appears t o me that there are the most satisfactory circumstances

tending to show what the right8 of the parties are: there are, long enjoyment, the

same dealing with the property for a very great period, during the whole of which it>

was the interest of one party to resist that which, nevertheless, he from time to time

performed.

It is argued that there is no evidence that we can look ab as proof af the prior

~ n ~ r u ~ e n t r lied on by the respondent*. Although referred to and m e m o ~ ~ ~ l l e d , it

is said not to be, because of certain technical reasons, or substantive reasons, if you

539

The original lease was again renewed in 1814.

IV H.L.C., 466 SADLIER ‘U. BIGGS [1853]

please, admissible in evidence. The covenant in the deed of 1750 is

perfectly sufficient evidence of it, if i t is true. Now, in order to see whether it is

true or not, I have already looked through all the subsequent transactions; but if

that is not sufficient, may I not look a t all the circumstances attending the execution

of the covenant, and see whether, conjointly with that or preceding it, there were not

circumstances tending to prove the truth of that statement, that he was bound by tlie

prior covenant? I am clearly of opinion that I am so entitled, and if I am entitled

to look at everything which enters into the statement of the circumstances, I ask, was

the statement contained in [456] the deed of 1750 true? If it was true, what would

you expect to find! Why, you certainly would find upon the register a memorial of

that old deed, signed, not by Charles Sadlier, the lessor, but by Chawner, the lessee,

it being invariably the lessee or the purchaser who in such cases registers the memo-

rial, and not the party from whom the estate has passed. If that is so, it brings us

back by the most legitimate course t o the memorial. Let us then see what that

memorial contains.

And this brings us to the second point insisted on upon the part of the appellant.

It is said when you look a t the memorial of the original instrument, the alleged

foundation of the subsequent deed in 1750, you do not find in this memorial such a

covenant as the deed of 1750 represented as being made ; I think there are two per-

fectly sufficient and satisfactory answers to that. In the first place, I do not see any

substantive difference between the two. I take it that the memorial is a literal copy

of the instrument of which it purports to be a memorial. It is a lease.

The parties treat it as an agreement for a lease, the yearly rent payable so and 80, with

a clause of renewal after the expiration of such lives, provided Chawner, then the

lessee, his heirs, executors, administrators, o r assigns, should, “ within six calendar

months, t o be computed from the death of the last of the said three lives, nominate and

appoint such life or lives as he or they would have inserted in any lease to be made

thereof, and paying as well all rent and arrears that should be due for the half-year

after the fall of such life, as the sum of .€Ell 7s. 6d., for renewing o r adding such life

or lives f o r eves.” I read “ for ever,” coupling it with “ of renewal,” thus: “ of

renewal ” (put all the rest in a parenthesis) “ for ever.” That is the only meaning

of the parties-there is no other ; the terms are to renew it for ever. There is indeed

a discrepancy between [457] the memorial and the lease, for the memorial appears

to state that there was to be no renewal till after the first batch of lives-all the first

three-had expired. The parties might stipulate that the renewal should take place

upon these terms, namely, no renewal till after the first three lives, and then a renewal

upon the falling of every life afterwards ; i t might be so, but I do not believe that was

the meaning. If it was, however, that is immaterial now ; it only shows that at the

first renewal, when only two lives had fallen in, the parties were renewing when they

were not bound to renew, but that does not interfere with what happened afterwards,

when, under the terms of this deed and the covenant in the lease of 1750, the parties

were from time to time parties to fresh renewals. Tberefore it appears to me, for

all practical purposes, that there is no substantial, or indeed any, difference whatever

between the covenant stated in the memorial, and the covenant stated in the deed

of 1750.

But I think there is another perfectly satisfactory answer to this part of the case,

namely, that if there is a discrepancy, and I must choose between the two deeds, the

parties have enabled me by their own acts to make the proper choice. They have

been acting upon the covenant as if the covenant, as represented in the deed of 1750,

was a correct covenant. Suppose for a moment that there is a difference.

I say there is none; but if there is, i t is perfectly competent for me to say that I be-

lieve that is the covenant and not the other. Mr. Roundell Palmer, in arguing this

case, supposed that by so doing we should be violating the rule, which is a perfectly

well established rule, and consistent with very good sense, and which was established

in the case of Baynham v. Guy’s Hospita7 (3 Ves. 295) overruling the case [468] which

was sent by Lord Bathurst for the opinion of the Court of Queen’s Bench (Cooke V.

Booth, Cowp. 819), namely, that you cannot construe a deed by the acts of the parties.

Certainly not, that is to say, if there is a deed which says, according to its true con-

struction, one thing, you cannot say that the deed means something else, merely be-

cause the parties have gone on for a long time so understanding it. But what is

540

Why not?

What is it?

Is that sol

SADLIER v. BIGGS Cl8531 IV H.L.C., 459

this instrument here? It is a memorial that is in the nature of a n ahtract, or a

rep~sentat ion of the parties of what the covenant was, and when I see what the effect

of it is represented to be in the deed of 1750, four years afterwards, and find that that

representation has always since been acted upon, the inference I arrive a t in point

of fact is, that it is not coi~ectly represented in the memorial, but has been more

accurately stated in the deed of 1750, when the parties were to act upon it, and it has

so been acted upon invariably ever since.

Upon these grounds, it appears to me perfectly clear thaS the Judges in Ireland

arrived at a satisfactory conclusion when they came toL the result that the respondent

was entitled to renewal of this lease in the terms of the deed.

I should notice that the rent, as stated in the memorial, is different from the rent

now paid ; but that is all esplained in the deed of 1750, because it seems that the memo-

rial, in reciting the subject-matter of demise, comprehended certain acres called

Butler's Acres, which had afterwards lapsed, and bhen that some reduction was made

in the rent.

Then the only other question raised, but which htas been abandoned, whether a

subdenomination called Gurtmunga was included in the lease; it is perfectly clear

that it was ; so the Master has found, upon evidence which satisfied him, and there is

no objection to that.

rnent of the Court below WLLS perfectly right, and shall move your Lordships that it

be affirmed.

Lord St. Leonards.-My Lords, I entirely agree wi th my noble and learned friend

in the conclusion at which he has arrived, and 1 think it only necessary to look at

the circumstances connected with the deeds, in order to show that there is really no

question to be discussed. The whole case shows that there is no point to be decided,

after the facts stated by the appellants are known.

The points made before your Lordships have been, first, with reference to the

evidence of the memorial of 1746, that is, the operation of that evidenoe; secondly,

as to the construction of the covenant for renewal stated in the memorial, ~ n t r a s t i n g

that with the covenant contained in the lease of 1750, the appellants insisting that,

in consequence of the discrepancy between the two covenants, the one must have been

released and a new obligation created by a contract between the parties; and the last

point is, that, at the differeit times when the leases-six, I think, in number-

successively were granted, the persons who granted them had not a sufficient estate to

bind the inheritance of the present appellanta.

It has been made a great question in reference to the memorial, which is signed

only by the party who takes the interest, whether that of itself, by it8 own force, shall

be considered as binding the estate of the grantor? That is a totally different ques-

tion from that which is now before your Lordships, because here the question is

whether or not the memorial can be considered as secondary evidence of the contents

of the instrument of 1746 ; and considering the length and nature of the deeds by

which it has been recog-[$60]-nised, and considering the statute itself under which

that memorial was enrolled, and the proof which accompan~es that memorial, and

hearing in mind, too, that of course every memorial is signed by the person who takes

the interest, because it is he, and not the grantor, who wants the proteotion of tbe

register, I certainly am of opinion-and I think the authorities will not impeach that

opinion-that this memorial is good secondary evidence of the contents of the deed

of 1716, it being proved u p m search that the deed has actually been lost.

It is no$ necessary to go through the cases ; , S c ~ l ~ y v. S ~ ~ l l y was referred to on

ttiis point. I was myself counsel in that ease, when it was in this House, and I see

i t mentioned among the eases cited in the Court below, but without reference to that

question, which therefore I must take for granted was considered as settled. I have

very full notes of the argument upon both sides, and I find no mention of argument

upon that point. I must therefore assume that that question was not seriously agi-

rated, because if it had been, I think I should have noticed it- as one of the points which

had been seriously discussed, and decided.

If you look a t the register of the memorial, you will find a witness, according te

the requisition of the Act, expressly swearing that he is a witness to the articlex

tliemselves, and to their execution by " the above-named parties ; " that he saw the

" said John Chawner duly execute the above memorial ; ') and that his name was put

541

Upon the whole, I E4691 am clearly of opinion that the judg- 9

IV H.L.G., 461 SADLIER V. BIGGS [1853]

as a subscribing witness, and that he delivered it to the register on the 7th January,

1746. So that you have an affidavit put upon record, under the authority of the Act

of Parliament, as to the execution of tile memorial necessary to secure the title of the

person taking from the grantor, and also as to the actual execution of that deed which

is no longer forthcoming;-that is proved by evidence taken in the course E4613 of

the case. Then the question is, the deed being lost, and the possession having gone

for a century according to that deed, whether or not that memorial is secondary evi-

dence of its contents? I confess I should be ashamed of the law of England if such

evidence as that could not be rffieived from necessity as secondary evidence.

But this case does not depend upon that mere question of secondary evidence. Bt

the same time, however, I must point out to the appellant that his argument entirely

bears against himself, because, unless he can set up the articles of 1773 against the

lease of 1782, he has not fc shadow of a case to mt upon. But, then his only proof

of the articles of 1773 is by a. memorial of exactly the same tenor as the memorial uf

the deed of 1746, and therefore, if he prevailed upon that point as to the deed of

1746, he could not at all remove the force and validity of the base of 1782 by the

supposed articles of 1773, for he would then by his argument entirely remove those

articles out of the case. His argument, therefore, unfortunately for him, is a two-

edged sword, which, whilst it may damage his adversary at one iiiornent, destroys

himself at another.

It is said that the lease of 1750 niust be suppoeed to be a new contritct, because

there were the same lives in it that were in the articles of 1746, and that the renewal

was before the dropping of the lives. The lease itself explains why that took place.

The lease of Butler's Acres had fallen in; there was consequently a division of the pro-

perty, and it became necessary to have separate leases. That therefore accounts for

what I may call the repetition of the lease of 1746 in that respect, by a demise for

the same three lives, and that was the ground why that lease was executed. There

was, therefore, a solemn lease executed, reciting that instrument of 1746, though not

in exactly the same terms, which is conclusive to my mind, as the memorial does

E4623 not profess to be an exact copy of the covenant ; it would not be required to be

so under the Act of Parliament, but is a general statement of its effect.

When I see that covenant in th0 i n s t r u ~ e r ~ t of 1746 intended ta be carried

into effect in 1750, by a person having at that time nothing more than ti mere

life estate, but who had an estate of inheritance a t the time he executed the deed of

1746, I must take for granted that what I find upon the face of that deed of 1750 is

it true expoeition of the meaning of the covenaiit of that deed of 1746, which is no

longer forthcoming. From that time, 1750 down to 1853, I may say every renewal

has been based upon that instrument of 1750. But then it has been said at the Bar

that you cannot possibly decree a specific performance upon the lease of 1750, because

it would be contrary to the decree, which is for a lease according to the instrument of

1746, and you cannot exclude that deed. That depends entirely upon the state of

the pleadings. I understand that the original bill asked for a specific performance

of the covenant for renewal in the lease of 1750. To that it w&s objected that a t the

time that deed was executed, the grantor was only tenant for life. Then the bill was

amended, and the articles of 1746 were put in issue. Then of course the decree was

founded on those articles. But there is nothing, according to the principles of courts

of equity, which, if this objection could prevail, would prevent a court of equity from

giving, if circumstances warranted it, a specific performance according to the lease

of 1750.

Now, if we trace the different leases and the times when they were granted, there

may be a question, which it is not worth entering into, how far those leases would

have bound the inheritance, independently of the deed of 1746, in consequence of the

limited nature of the estate of the persons who granted them; but let us come down

only to that [463] transaction of 1770, when the lease was renewed under the

authority of the Court of Chancery in Ireland. That was an raplicat$ion made under

the Irish Act of Anne (11 Anne (IT.}, c. 3) , which Act authorised the Court of Chan-

cery or of Exchequer, after full examination of the facts, to direct guardians to grant

renewals of leases for lives a6 the representatives of persons under disabilities. It

is clearly impossible but that the whole title must have been then investigated ; and

at that time, for aught I know to the contrary, the deed of 1746 may have been pro-

duced ; and if I had to direct a jury, I should most certainly say that it must be pre-

542

SADLIER to. BIGGS [1853] XV E.L.C., Q61

sumed to have been produced before the Master and before the Court; because the

Lord Chancellor did, during the infancy of Thomas Sadlier, direct his guardian to

execute a renewal of that lease; and that lease was accordingly renewed. @an your

Lordships have a doubt that then, when the facts must have been known so much

better than they can be now, what was so done was rightly done? Are we to presume

the reverse, and to say that that which was then considered right must now be wrong,

because by lapse of time the instrument has b e n lost which might then have ~ I I

forthcoming’! To my mind it is perfectly satisfactory that at that period the Court

of Chancery was satisfied that it wao duly executing the power given to it by the

statute, in directing the tenant in tail to dispose of his. valuable inheritance by a

lease for three lives, under a specifio covenant for renewal a t a very small fine.

Well, then, the inheritance was parted with, that is, the quasi inheritance for three

lives was parted with, under the authority of the Court.

Now, without troubling your Lordships after the full [4a] op&ing of this case

by my noble and learned friend on the woolsack, with anything a b u t devolution of

title, I. come at once to that which would of itself f o m just as good a title, in con-

nection with the former d d s , as any man ever p m s d i% any estate in this country.

The leasee, Biggs, who claimed under the original lessee, Chawner, filed a Bill, I think,

in 1779, for a renewal of the lease. Thomas Sadlier, described in the answer to that

Bill as the tenant for life, did not raise these objections at ail; he raised a collateral

issue with reference to whether some property that was in dispute, which had for-

merly fallen in, was renewable or not ; and he said by his answer, that if he was forced

to give a specific performance, he trusted it would be only upon the terms which he

mentioned with reference to that collateral issue ; but in his answer he did distinctly

admit, without the slightest qualification, the deed of 1746 ; he admitted the deed of

1750, and the other renewals ; and in no respect attempted to impugn them. What

can be said of such things$ Suppose it did not bind the inheritance; it i s a state-

ment by a man deeply interested, who was called upon to renew, who would lose the

benefit of the estate for his life, and whose children would be bound by the renewal

unless they couId impeach it. Instead of going to a decree, he executed a deed, the

first deed that was executed between these parties, and which in point of fact put an

end to the suit. That deed recites that it is made between Thomas Big@ of the one

part, and Thomas Sadlier of the other part, who had been parties to a suit in which

‘’ several proceedings ’’ were had ; and then it goes on to say, ‘‘ It hath been agreed

upon by and between the said parties to these presents, that the said lease should

be renewed in the usual and ordinary manner, and in case the said Thomas Biggs

should be dispossessed of any of the said lands in conse-[465]-quence of a claim made

by one Augustine Duggan, and to support which claim a Bill was filed by the said

Duggan,” then the rent was not to cease, but the tenant was to have compensation ;

and then, in consideration of a certain sum of money, there being a dispute about

timber, Sadlier conveyed t5 Biggs the timber standing upon the estate. Now that

is on th0 6th of March, 1782 ; there is to be a renewal in the usual and ordinary

manner ; ” no longer any dispute about the deed of 1746, or the interest, or whether

the inheritance was bound or not; b u t this person in possession of the estate, entitled

to the enjoyment of it for his life, and his children after him, consents to execute,

“ in the usual and ordinary manner,” a renewal. In the lease made in March 1782,

there is this recital : “ Whereas the right of renewing the annexed indenture of lease

ifi now legally vested in the said Thomas Sadlier, and whereas the right of renewal

and benefit of the said annexed lease is now vested in the said Thomas Biggs.” It

is impossible that anything can be more conclusive than that ; because, if I am to put

it upon the ground that the persons cannot be bound who have granted these leases,

yet you would find it impossible to affect a lease, granted as this was, after litigation,

and with the ful l knowledge of all the circumstances. Kow, as I understand, though

there are so many Thomas Sadliem-I think there were four of them i n succession-

this Thomas Sadlier was the grantor in the supposed articles of 1773, and he wae &e

grantor in the settlement of 1784, and I must assume Thomas Sadlier to be at that

tiine entitled to the inheritance he is dealing with, the inheritance which is claimed

under him, But these deeds are dated

in 1782, and it is said that they are invalidated by the effect of the prior settlement

of 1713, the s~tileInent made in ~ ~ t ~ ~ p l a t i ~ ~ ~ of m rriage. Now [&e]! the only

543

e

I cannot, therefore, see where the question is.

IV H.L.C., 467 SADLTER W. BIGCS 218531

f

evidence of that, fying before me a t this moment, is the memorial to which I have

already referred. If the o b ~ ~ t i o n against the m e m o r ~ ~ of the deed of 1746 should

prevail, then those articles of 1713 cannot bo read. But I will m u m e that they ean

be read. We have nothing, then, but the articles to go by. Thorn articles are simply

and only to provide a jointure of &I00 a year for the wife for her life, for which the

estates are placed in the hands of trustees as a security. That does not affect the

lease of 71782 at all. And when you come to the poot-nuptial settlement of 1784,

which of course cannot bind and overrule the lease of 1782, I noticed during the argu-

ment that there is a curious recital there, as if they wanted, if possible, to make a

found&t~on of something to rest their settlement upon. The recital i s in this form :

‘’ That by ~ndented artides of a g ~ e m e n t made on the 19th of February, 1773, between

the said Thomas Sadlier, party to these presents, of the one part, and the said Williani

~ o o d ~ ~ a r d the elder and the said Rebecca, by the name of Rebecca W o ~ w a r d , elde

daughter of the said William ~ ~ d w a r d , of the other part: Whereas a marriage

intended to be had and solemnized between the said Thomas Sadlier and said Rebecca

now his wife, he, the said Thomas Sadlier, in ons side ratio^ of the sum of &500 ster-

ling by the said William ~ ~ d ~ a r ~ the elder, covensnted to be paid to mid ‘Thomas

Sadlier, and for other the consideratio~~s in said articles m e i i t i ~ n ~ , doth covenant

and agree with the said ill^^ Woodward th0 elder, his heirs, executors, and ad-

~inis t ra tors , that he, the said Thomas Sadlier, will settle and convey the several lands

therein mentioned and expressed, as near as may be, in reference to the parties con-

cerned in such s&tlement,, who shall be living at the time of making thereof.” I do

not perceive from the e~i-[~67]-de~ce that what i s there mentioned as expressed and

contaixied in the deed of 1173, is in the memorial of it on your Lordships’ table; that

n~emorial i s strictly confined to what E hsve told you, namely, p r ~ v ~ d ~ n ~ aa joi ture

for the intended wife. But then it is said that as the lease in 1782, though prior tu

the ~ t t l 0 m e n ~ . of 1786, was ~ u ~ ~ u e n t to the sett~ement ef 1773, that set.tlement bound

everybody claiming under the settlement of 1784. Well, that i s the question j but if

you were to follow this up, which it i s really s waste of time to do, you would find

they have continued executing settlements and renewing leases from time tcr time

down to 1814, always in the terns of, and almost as i t were, in connection with the

s e ~ t ~ e m ~ ~ ~ t , when it is utterly i m p ~ s i ~ ~ e that the persons gran t~ng those leases shou~d

not have been aware of the nature of the acta they were doing; and in every one of

them it i s remarkable that every man who grants a lease assumes to have an inherit-

ance to enable him to do so, and therefore a more scandalous fraud could not have

been committed than would have been committed upon those leases, if the title could

be impeached in the way now suggested.

The sett~ement of 1784 does not expressly except all leases, but it excepts, in terms,

all leases which were b m a if;& leases of any part of the property. 3 u t the man who

nzade that settlenient knew perfectly, of course, that he had two years before granted

the lease, after a litigation ; clearly, therefore, there was no surprise upon him. It

was after a litigation of several years; it was the ~ ~ i n a t ~ o n of the litigation,

the completion of it, and wm in lieu of a decree under it. Indeed he became his

own Chancel~or, and finding that he had no merits, he submitted to that which was

clesrly ilgsinst him, arid having executed a lease of the property, he takes care, upolr

h i s ~ ~ a r r ~ ~ ~ e , riot to leave himself open [4@] to any demand for damages by those

who might claim under him, his children, or grandchildren and other parties axld

his intended wife, because he says? “ I convey this estate to yeu subject to any leases

6 o m $de nitde.” This lease was, beyond all question, bona fide, and therefore he

conveyed the estate expressly subject to the lease of 1782.

My Lords, the only other question, if question i t can be called, is whether, if you

are to go buck and rely upon the lease of 1746, there was or was not a covenaxlt for

perpet;ual renewdf The?:

come in ~wkwardly enough, I admit ; but you must reject those strong words if ~ 0 1 1

stty there i s not a covenant for perpetual renewal. I asked in vai11 of the learned

counsel, who is very con~petent o give an amwer when any can be given, wlzat seIlse

was to be rtttributed to the words (‘ for ever,” if that was not their meurlingt Ne WUId

give no other. Can you reject t ~ ~ e r ~ ~ ? Can your ~ r d s ~ ~ ~ p s be calf4 upoil ~8 a, Court

of Equity to reject, those large words, exprwsive beyond all others that the Englistk

~ ~ i # ~ ~ i ~ ~ e contains$ There in no other phrase SO fitted to express what the tlwrfies

514

If there was not, you must reject these words ‘‘ for ever.”

BEG. v. SOUTE-EASTERN RY. [1853] IT H.L.C., 46s

intended, that this lease is to be renewed for ever. The fines are to be paid for ever ;

s u p p ~ i n g you construe it in that way that the fines are to be paid for ever, that

must be of course in consideration of-what? why of renewals f o r ever; because

fines are only to be paid upon the renewals. If, therefore, you consider that those

fines were expressly stated as a perpetual payment, that of itself implies a perpetual

renewal, upon which alone those fines could be paid.

A case was cited, upon which I will not detain your Lordships for a moment,

viz., Bapham v. Guy’s Hospital (3 Ves. 295). Without saying whether that cmt3

was rightly o r [&9] wrongly decided, I do not think i t has any ba r ing upon the

present. The proviso in that case showed that the parties did not intend tcp go beyond

t.he lives. That case is one confined to lives, and has no bearing upon this which is

now before your Lordships, beeause there the question simply was whether or not,

upon the due construction of the covenant, there was a n ~ h i ~ i g more than a covenant

for the further assurance of the p a ~ i c u l a r leme which had been granted.

My Irords, I have occupied, I am afraid, more time than the ease deservee, but

upon the whole I never e n ~ ~ a j n e d a clearer opinion in my life than I do upon this

case; and I have the satisfaction of agreeing with my noble and learned friend, in

coming to the conclusion that the justice of the case i s in all respects niet by the

constxuc~ioi~ which has been put upon it by the Court below. With regard to co&s>

there cannot be any sort of doubt that the question raised upon this appeal ought

never to have come to your Lordships’ house. I therefore entirely agree with my

noble and learned friend, that the judgment of the Court below should be affirmed,

and I recommend your Lordships to aEm it with costs.

Lord B~ugha~n.-In consequence of unavoidable absence I did not hear this case

argued, and therefore I only rise to say that 1 totally diger frem my noble and

learned friend in one respect, namely, in thinking that he has occupied one moment

of your Lordships’ time too long, especially when we recollect that only one side has

been heard nt your ~ r d s h i p s ’ bar. Under such c~rcums~nces , it beoonies absolute^^

necessary that bhe judgment of t.his House should be given upon the fullest considera-

tion for the E4701 a ~ r a n c e of the parties that your ~ r d ~ i p s , in c o n s ~ d e r ~ ~ ~ ~ the ease

and in a f f i ~ ~ i ~ n ~ the judgment below, without hearing the respondent, have carefully

appIied your minds to the whole a r g u ~ e n t .

Decree &armed, wiGh costs,

It was afterwards ordered, “ tha t the appeal be dismissed, m d the d e c r e ~ l order

of the 25th November, 1847, and the decree of the 5th February, 1851, be affirmed,

with costs.” Lords’ Journals, July 5, 1853.

[471] The Q U ~ ~ N , on the p ros~u t ion of C. ~ D ~ A R ~ S , - P ~ ~ ~ ~ ~ ita ETTOP; the

DIREC~ORS~ etc., of the South-Eastern R a i l u 7 a y , - ~ e ~ e ~ ~ a ~ ~ s &a Errov

[June 29, July 4, 14, 1853.1

S.C. X’i” Jur. 901; and, bdow, X’i’ Q.B. [Mews’ Dig. v. 161, 192, 203, 201; xi. 1413.

485 ; 20 L.J. Q.B. 428.1

~ a q ~ ~ a m ~ ~ - ~ a ~ ~ ~ ~ a ~ Bridg~-Qpt io7~~leadi .12g-Pract ice~osCP,

Under the 8th and 9th Yict. c. 20, s, 46, a railway company has the option, xrhen

its line of railway crosses a turnpike road or a public highway (except Then

otherwise provided by the special Act), either to carry the road over the rail-

way or the rai1wa.y over the road. A mandamus to command the company to

dt, one of these two things is theref~re deftstive unless it shows, on the face of

it, circumstances which establish the impossibility of the company exercising

this option.

m e r e such a mandamus had been issued, and the return had merely traversed

that the road was a public road, and the issue thus raised had been found

against the company, and a pere~ptory mandamus had been awarded :

Keld, that on a writ of error, the Court of Error being satisfied that the man-

E.L. x. 545 18