CASES IN THE COURTS OF CHANCERY, ROLLS EQUITY EXCHEQUER. STEELE v. MITCHELL.* RICHARD STEELE, the grandfather of plaintiff, being in the year 1770 seized of an undivided moiety of the lands of Ballynard and Ballyconoge, in the King's County, under a lease for lives with covenant for pepetual renewal, executed in the year 1710, demising the entire of the said lands (the other moiety of the lands being then vested in William Brereton for a like estate), by indenture of marriage settlement, executed on the 26th of October 1775, on his marriage with Anne Philips, in consideration of the marriage, and of the lady's fortune, conveyed his undivided moiety to two trustees, Price and Lawrenson, to the use, after the marriage, of the settlor for life, remainder to the use of the trustees during his life, to preserve contingent remainders; remainder after his decease (subject to an annuity by way of jointure to his intended wife), to the first and other sons of the marriage, quasi in tail male. That settlement contained a power enabling Richard Steele to lease all or any part of the lands for any term not exceeding three lives or thirtyone years, in possession, at the best rent, without taking fine. The settlement was registered shortly after its execution, and George Steele, the father of the plaintiff, was the eldest son of the marriage. On the 28th October 1777, William Brereton, the owner of the other undivided moiety, by deed of that date, mortgaged that moiety for £500 to Richard Steele, and afterwards for a further sum of £300, on the 2d November 1782, by deed of that date, conveyed the equity of A.'s son could not impeach the lease as to one undivided moiety, as being contrary to the leasing power. This case has been reported out of its order, because it was argued before the present Reporter had undertaken the duty of reporting in the Court of Chancery, and he was unable to procure a note of the argument earlier. 1840. Chancery. STEELE v. MITCHELL. redemption to Richard Steele. Both these latter deeds were registered shortly after their execution. By deed of the 4th April 1785, Richard Steele leased the entire of lands comprised in the original lease of 1710, to Thomas Mitchell, for three lives, at a rent of £121, with a covenant for perpetual renewal. That lease contained a covenant for quiet enjoyment by the lessee, his heirs and assigns, without disturbance "by any person claiming by, from, or under Richard Steele," and also a covenant for further assurance; but that lease contained no clause of distress or re-entry, nor was a counterpart executed by the lessee. Upon the marriage of George Steele, the eldest son, in 1797, by a settlement executed on the 4th of November in that year, previous to and in consideration of the marriage, Richard Steele conveyed the entire of the lands comprised in the lease of 1710, and all his estate and interest therein to two trustees, in trust, after the solemnization of the marriage, for Richard for life, and after his decease, subject, as to one undivided moiety, to a jointure for the wife of Richard, in the event of her surviving him, to the use of George Steele for life, and after his decease (subject to a jointure for his intended wife), to the use of such of the sons of the marriage, for such estates as George Steele should appoint. That settlement contained a power enabling Richard Steele to lease all or any part of the lands for any term not exceeding twenty-one years, or for two lives, or for any number of years determinable upon one or two lives, in possession, at the best improved rent, without fine; and R. Steele covenanted against incumbrances, except tenants' leases. A renewal of the original lease was executed to Richard Steele in 1803, one of the lives in which was in being at the time of the filing of the bill. Previously to 1812, the interest of Thomas Mitchell, the lessee in the lease of 1785, had become vested in his son Andrew Mitchell, and on his decease in his son Thomas Mitchell, then a minor; and the executors of Andrew, on the 29th October 1812, obtained from Richard Steele a renewal of the lease of 1785, in trust, for Thomas Mitchell. That renewal contained a further covenant for perpetual renewal, but did not contain any clause of distress or of re-entry in case of non-payment of the rent reserved, nor was any counterpart executed by the lessees. On the 3d of February 1820 another renewal was executed by Richard Steele to the executors of Andrew Mitchell, in trust for Thomas Mitchell, his son, who was still a minor, and that in like manner did not contain any clause of distress or re-entry, nor was any counterpart executed by the lessees. The lands were held under that lease until the death of Richard Steele in August 1835; George Steele, the father of the plaintiff, died in the lifetime of Richard, having by his will, dated the 7th of August 1809, duly appointed the entire of the lands in quasi tail, to the plain tiff, who obtained renewals of the original lease, and barred the quasi estate tail, and on the 1st May 1837 served notice to quit, and having been unable to proceed with an ejectment which he brought, in consequence of one of the lives in the renewal of 1803 being in existence, filed the present bill upon the 3d November 1838, for the purpose of setting aside the lease of 1785, as to one moiety of the premises, as being contrary to the leasing power given by the settlement of 1775, and the subsequent renewals, as contrary to the leasing power given by the settlement of 1797. The defendant by his answer insisted, that the rent reserved by the lease of 1785 was at that time the full value of the demised premises, and no evidence was given in the cause upon that subject. But it was admitted that in 1812 and 1820, the value of the land was then greater than the rent. The defendant by his answer also insisted, that if the lease of 1785 was void, he would be entitled under the covenant for quiet enjoyment, contained in it, to recover the value out of the assets, real and personal, of Richard Steele; and that as the moiety of the lands purchased by Richard Steele, after the date of the settlement of 1785, was not bound by the trusts thereof, the reversion of said moiety, and the rent incident thereto, ought to be deemed assets in the hands of plaintiff, and liable to make compensation to the defendant in the event of eviction. But no case of election or confirmation, such as was relied on in argument by defendant's counsel, was put forward in the answer. Mr. Warren, Q. C., Mr. Smith, Q. C., and Mr. Napier, for the plaintiff. The only defence set up by the defendant in his answer is, that he is entitled to compensation for being evicted from the moiety not comprised in the settlement of 1785, out of the assets of George Steele, the grantor of the lease; that, however, is an equity which they could only establish by a cross bill, bringing the real and personal representatives of George Steele before the Court; and they cannot have the benefit of it in this suit. Their counsel, however, at the bar, have not confined themselves to the defence set up by their client's answer, but contend that the lease of 1785 was confirmed by the settlement of 1797, and that we, having elected to take under that settlement, cannot now disturb the lease. It is extremely inconvenient to have a case set up at the bar, of which there is no trace to be found in the pleadings, as the opposite counsel come prepared merely to argue the case as it appears upon the answer, and the line of defence taken in this case is quite a surprise on them. In addition to that, they contend that as we take under the settlement of 1797 one moiety of these lands, which constituted part of the assets of the grantor of the lease of 1785, and as we had notice of this lease, we are bound by the covenant for quiet 1840. Chancery. STEELE v. MITCHELL. 1840. Chancery. STEELE V. MITCHELL. enjoyment on the part of Richard Steele contained in it, and cannot be permitted by a Court of Equity to do an act which would render the representatives of Richard liable for a breach of that covenant. With respect to the former defence, the settlement of 1797 does not confirm the lease, nor was it intended to confirm it. In the case of Doe dem. Potter v. Archer (a), where the premises had been sold by a remainder-man expressly subject to a lease for twenty-one years, granted by a tenant for life without a leasing power, although the premises were described, in the conveyance to the purchaser, as in the possession of the tenant under that lease, and it was excepted in the covenant against incumbrances, yet it was held that the purchaser was entitled to evict the lessee. In Cockerell v. Cholmondeley (b), a defendant, who with the knowledge of facts, which rendered a sale, by a prior tenant for life, and the trustees of the will under a power of sale, voidable, lay by during the life of that tenant for life, and acquiesced in an application to parliament respecting the dispositions of the purchasemoney, was held not to be prevented by it from recovering the estate from the purchaser; and the Master of the Rolls (Sir J. Leach) in his judgment in that case says "In equity it is considered, as good sense requires it should be, that no man can be held by any act of his "to confirm a title, unless he was fully aware at the time, not only of the "fact upon which the defect of title depends, but of the consequence "in point of law; and here there is no proof that the defendant, at the "time of the acts referred to was aware of the law upon the subject, nor "was it even alleged in argument" (c). In Murray v. Palmer (d), an acquiescence by the party seeking to impeach a sale, and receipt of interest for twelve years, were held not to amount to a confirmation; and Lord Redesdale, in his judgment in that case (p. 486), lays it down, that in order to amount to a confirmation, an act done must have been done with the knowledge that the effect of it will be to confirm a transaction which that party has a right to impeach; and in Dunbar v. Tredennick (e), the doctrine as to confirmation is laid down in nearly the same terms by Lord Manners. Secondly, as to there being an election in this case, they say on the other side, that Richard intended to confirm this lease by the subsequent settlement, and that George Steele, under whom plaintiff claims, having derived and enjoyed benefits under that same settlement, cannot now disturb the lease. In order to raise a case of election against the owner of any particular property, it must be clear that the person who gives other benefits to that owner, intended to give this property to a third (a) 1 Bos & Pul. 531. (b) 1 Russ. & M. 418. (d) 2 Sch. & Lef. 474. (e) 2 B. & B. 317. party. Election cannot be raised unless by express words, or by implication as strong as if express words had been used (a). They ought to shew an intention on the part of George to confirm this lease, as clearly as if he had said "I confirm this estate," before they can call on those claiming under him to elect. In the settlement there is not a word about this lease; there is only a general clause, excepting out of the covenant against incumbrances, the tenants' leases. This is a case of contract, and the rights of the parties must be governed by the express terms of it; in wills, the intention on the part of the testator, to give away the estate from the family, is required to be clearly manifested. In Birmingham v. Kirwan (b), Lord Redesdale expresses the rule thus, "The general rule is, that a person cannot accept and reject the same "instrument; and this is the foundation of the law of election, on which "Courts of Equity, particularly, have grounded a variety of decisions, “in cases both of deeds and of wills, though principally in cases of wills, "because the former being generally matter of contract, the contract "is not to be interpreted otherwise than as the consideration which is "expressed requires." Admitting even that there was a case of election raised by the settlement, yet nothing has been done by the plaintiff here, or those under whom he claims, to shew that they have elected. In order to constitute an actual election, the acts of a party bound to elect between two inconsistent rights, must imply a knowledge of his rights and an intention to elect, and when those acts are equivocal, they will not amount to an election (c). In this case George Steele, the father of plaintiff, died in the lifetime of Richard, and therefore no act of his can be relied on; and immediately after the death of Richard, the plaintiff commenced proceedings to evict this lease. The doctrine in Taylor v. Stibbert (d), which has been relied on by the defendant, does not apply to the present case, because the eviction of the defendant would impose no liability on the assets of Richard. Mr. W. Brooke, Q. C., Mr. Collins, Q. C., and Mr. Lewis, for defendant. As to the objection that we have not stated in our answer the defence we rely on in argument, a defendant is not bound to set out in his answer every ground on which his counsel may rely in argument. The answer must raise every question of fact, but when the Court has the facts before it, it will adjudicate upon the law. The bill does not charge that the lease of 1785, is contrary to the leasing power in the settlement of 1775, except so far as the covenant for perpetual renewal. No evidence has been given that the rent reserved in that lease was less than the value of the land at the date of the lease. It is true that it is (a) Dashwood v. Peyton, 18 Ves. 27. (c) Dillon v. Parker, 1 Swan. 359. (b) 2 Sc. & Lef. 450. (d) 2 Ves jun. 445. 1840. Chancery. STEELE V. MITCHELL. |