equity extend beyond that. The exception in the covenant against incumbrances of leases, referred only to leases bona fide made, and'not to those which were void and fradulent, both at law and in equity. The covenant itself could only extend to incumbrances which would affect the lands in the hands of the trustees, and not to personal covenants which could not affect the trustees' estate, derived under the settlement. Now an exception is ever part of the thing granted, and a thing in esse (a). The covenant was for the benefit of the trustees, why should it abridge their estate? The deed of 1797 was equivalent to a recovery, which would only let in the charges of the tenant in tail (b). In Burke v. O'Malley (c), tenant for life and remainder-man in tail suffered a recovery to the use of the tenant for life, for his life; remainder to the remainderman in tail for his life; remainder to his first and other sons in tail. Judgments were obtained against the remainder-man, and afterwards the deed to lead the uses was registered, and it was held that the judg. ment creditors did not obtain a lien against the estates vesting in the issue of the remainder-man in tail. As to the doctrine that the possession of the tenant is notice to a purchaser, of his interest, that is not actual, but constructive notice; it renders it the duty of the purchaser to inquire; Powell v. Dillon (d): but for confirmation, actual knowledge is necessary. In Boylan v. Warner (e), Joy, C. B., says, "In Taylor "v. Stibbert, the equity in favor of the plaintiff flowed out of the "covenant for renewal which was in his lease, rather than from notice to "Stibbert." The principle of compensation does not apply here, because neither plaintiff nor George Steele takes this undivided moiety under or from Richard the covenantor. The principle is, that you shall not take the property in dispute, that is, the settled moiety, under the covenantor, and, by doing so, burden his assets. But the plaintiff here takes no property of Richard, which by any legal proceeding could be made liable to this demand of defendant, for breach of any covenant. Taylor v. Stibbert only applies when the party takes the very property in dispute, and takes it from the covenantor. The LORD CHancellor. In this case the bill prays that the lease of 1785, and the renewals afterwards obtained, may be declared void as to one moiety of the lands comprised in it, as being contrary to the leasing power contained in the settlement executed in 1797, on the marriage of plaintiff's father. The material facts of the case are these-Richard Steele, the grandfather of plaintiff, was seized of the moiety of these lands which the plaintiff now 1840. Chancery. STEELE V. MITCHELL. June 25th. (e) Hayes & Jones, 83. c+ 1840. Chancery. STEELE v. MITCHELL. seeks to have discharged from this lease, under a lease for lives renewable for ever; and he, on his marriage in 1775, settled that moiety to the use of himself for life, remainders to his first and other sons quasi in tail. That settlement contained a power enabling Richard to lease the lands for any term, not exceeding twenty-one years, or for one, two, or three lives; and the only restriction upon its exercise was, that the leases should be at the best and most improved rent, without taking any fine. George Steele was the eldest son of that marriage, and entitled, under the provisions of the settlement, to a quasi estate tail. Subsequently to the settlement, Richard Steele acquired the entire interest in the other moiety, by purchase, in November 1782. In this state of things, Richard Steele, on the 4th November 1785, leases the entire of the lands to Thomas Mitchell, under whom the defendant derives, for three lives, with a covenant for perpetual renewal. That lease contains a covenant, on the part of R. Steele, that Mitchell shall hold the lands without disturbance by him or any one claiming under him; and also a covenant for further assurance on the part of Steele. The lease does not contain any reference to the settlement of 1785, nor does it purport to be executed in pursuance of any power. It is clear that this lease was not warranted by the leasing power in the settlement; and it is equally clear, that if Mitchell's possession under the lease were evicted, the assets of Richard would be liable to make compensation for such eviction, unless the eviction were by a title paramount to that of Richard. Then comes the deed of the 4th November 1797; and by that deed, the entire of the lands leased to Mitchell were settled, to the use of Richard for life, with remainder, subject to a jointure for his wife, to George, his eldest son, for life; and after the decease of George, to the use of such of his sons as he should by deed or will appoint, charged with a jointure for the wife of George. George died in 1807, in the lifetime of his father, having appointed the lands to the plaintiff; and Richard died in 1835. An ejectment is then brought by the plaintiff, on the ground that the lease was not warranted by the leasing power; but in consequence of the existence of a legal bar, he is obliged to come into this Court. It is admitted, on the part of the defendant, that the lease is not warranted by the power; and the only question in this cause is as to the effect of the deed of 1797 upon the lease. The defendant, in his answer, relies upon the covenant in the lease, as entitling him to compensation out of the assets of Richard the lessor. For that, however, he should have filed a cross-bill, and it has been admitted by his counsel, that such an equity cannot be made available in this suit. The facts stated, however, raise the question, whether the plaintiff, who has taken the benefit of the deed of 1797, and now enjoys the entire of those lands under it, can avoid an estate created by the settlor in that deed, and thereby throw upon his assets the liability for a breach of the covenant, which will be occasioned by the destruction of that estate; and whether that question is now open to the defendant? Now, although the defendant has not set up this defence in his answer, but has relied on another, yet, as all the facts are brought before the Court, I feel myself bound to give him the benefit of that defence, and to consider the effect of the deed of 1797. There cannot be any doubt that Richard considered himself the absolute owner of the entire of the lands, and, as such, he conveyed them to the trustees of the settlement of 1797, and under that settlement plaintiff derives as a purchaser for valuable consideration. If he were not a purchaser, no question could arise, for he clearly would have no right to disturb the lessee if he were merely a volunteer; and that makes it necessary to consider the covenant for quiet enjoyment in the lease of 1784, in order to ascertain whether an eviction by plaintiff would be a breach of that covenant. Now, in my opinion, the cases which have been cited, of Hurd v. Fletcher (a), and Evans v. Vaughan (b), are quite conclusive upon the subject; and after those decisions, as it appears to me, expressly upon the point, I do not think I would be justified in sending a case upon the subject to a Court of Law. Now, if that be so-if an eviction by plaintiff here would be a breach of that covenant, and render the assets of Richard liable for the breach-the doctrine in Taylor v. Stibbert is precisely applicable. That doctrine is this, that if a tenant for life make leases not warranted by his power, a party purchasing from him, with notice of those leases, shall not be permitted afterwards to evict them, and thereby render the assets of the tenant for life liable for that eviction. Sir Edward Sugden, in his work on Vendors and Purchasers, speaking of the case of Luffkin v. Nunn (c), says, that if in that case the tenant could have recovered for a breach of covenant for quiet enjoyment, the landlord would have been compelled to perform the agreement; and he distinguishes that case from the case where a man, having a partial interest in an estate, agrees to grant a lease which his interest does not enable him to grant, and then joins with the remainder-man in selling the inheritance. There, he adds, "Equity rightly holds the purchaser bound by the agreement." (d). Now, in those observations I fully concur; and as the plaintiff here has totally failed in shewing that this lease is impeachable, otherwise than as contrary to the leasing power, I must dismiss his bill; and I should give the defendant the costs of the dismissal, but that he has so imperfectly stated his case in his answer. Under these circumstances, therefore, I shall (a) Ante, (c) 11 Ves. 170, Dismiss the bill, without costs. (b) Ante. (d) 2d vol. 271, 9th ed. 1840. Chancery. STEELE V. MITCHELL. 1840. Rolls. June 27. The decree declared that the estate therein mentioned was divisible into three parts, and that the younger children of A., B. and O. were severally entitled to a third. O. was largely indebted to the estate, and a sequestration issued and continued against him until his death; by means of which certain sums were brought in from time to time and allocated according to the rights of the parties. Two of O.'s younger CRONE and others v. O'DELL and others. THE decree in this cause, made the 14th of February 1811, declared Upon taking account of the assets of John Crone under the aforesaid decree, the Master reported Colonel William O'Dell indebted thereto in the sum of £23,977; and upon the return of the report, it was decreed on the 19th of July 1819, that Colonel O'Dell should bring in that sum with interest. A sequestration afterwards issued against him for nonperformance of this decree; by means of which, a part of the sum ordered was brought in, but the defendant remained indebted to the fund in a large amount. Pursuant to two several allocation orders, the fund realised by means of the sequestration was paid to the several parties entitled, with the children died exception of the shares of two of the younger children of Aphra O'Dell, viz., Henry O'Dell, and William O'Dell, jun., both deceased; which shares, amounting to about £1000, reported to their respective representatives, was the subject of the present question. before any of the funds were allocated, and the Master's report found that certain sums (being their shares of Henry O'Dell bequeathed his property to his father Colonel O'Dell, who as executor proved the will in the year 1826. William O'Dell, jun., died intestate and unmarried, and his father, Colonel O'Dell, as his sole next of kin obtained administration of his effects. Colonel O'Dell, the fund then T., another of O.'s younger children, having become legal personal representative of his deceased father and brothers, now applied for the aforesaid shares, after payment of the costs due to their solicitor. Held:- that when O. became entitled to this money, it was attached for the purposes of the decree by the sequestration against him, and should not now be paid out to his representative. There were ten younger children of O., all of whom appeared and proceeded jointly by the same solicitor, and incurred costs to a considerable amount. The surviving children were allowed by the solicitor to draw out their shares of the fund without any deduction for the costs for which they were jointly and severally liable; and he now applied for payment out of the sum in bank (i. e. the shares of the two deceased children) of the entire amount of the costs. Held that the shares of the two deceased children were liable in the first instance for that proportion only of the costs which they should have paid if the others had contributed equally; and that it was the duty of the solicitor to have taken care that the costs should be borne equally by the several younger children. though so entitled, never claimed the shares reported payable to the representatives of his deceased sons, and died, in 1832, indebted to his own younger children to an amount exceeding the sum now in bank, but similarly indebted to the plaintiffs and defendants, the younger children of Robert J. Crone and of Constance Massy, to the extent of their several proportions of the sum in which he was indebted to the estate of the testator John Crone. Robert D. O'Dell, another of they ounger children of the said Aphra O'Dell, became legal personal representative of his deceased father, and of his two deceased brothers Henry and William, whose next of kin now appeared to be their surviving brothers and sisters. The ten younger children of Aphra O'Dell appeared in this cause, and proceeded jointly by the same solicitor, to whom a considerable sum was due for the costs incurred on their behalf. But all of them, excepting Henry and William O'Dell, had drawn their respective shares of the fund without any claim of the solicitor or any deduction being made on account of the costs. An order of reference to the Master was lately obtained by Robert D. O'Dell, to ascertain the amount of the costs payable to the solicitor of Henry and William O'Dell, in the hope, as it seemed, that after liquidation of the solicitor's claim, the remainder of the fund should be payable to Robert D. O'Dell, as representative of the said Henry and William, to be divided by him with his brothers and sisters. Upon the reference, the plaintiffs insisted that as Colonel O'Dell had become entitled to the fund in bank as the representative of his sons Henry and William, it should be applied in liquidation of the debt due from him to the assets of John Crone, and be divided into three parts pursuant to the decree. Whereas Robert D. O'Dell insisted that as personal representative of Henry and William O'Dell, he was entitled to receive the funds reported to them after payment of the costs due to their solicitor. It apeared that the sum of £265. 18s. 6d. was due to the solicitor of the younger children of Aphra O'Dell. The Master reported the foregoing facts specially, and submitted to the Court the question whether the fund should be applied in the manner contended for by the plaintiffs, or as insisted on by the defendant Robert D. O'Dell. Mr. Collins, Q. C., with whom was Mr. Burroughs, for Robert D. O'Dell, now moved that the Accountant General might out of the government new 34 per cent stock, &c., transfer to Mr. Hewson the solicitor so much as would be equivalent to the sum of £265. 18s. 6d. the amount of the costs mentioned in the report, and also transfer the residue of the said stock, to the said Robert D. O'Dell, as personal representative of Henry O'Dell and William O'Dell deceased. They submitted that the Court could not administer the assets of Henry and William O'Dell in a summary way, nor take the administration 1840. Rolls. CRONE V. O'DELL. |