The Sun.
London, England, 1822-03-04 00:00:00

IRISH LEASES.

IIOLTSE OF LORDS---WEDNESDAY, FEE. 27, 1822.
:I.ltcriarto,NuaENT, Plaintiff in Error.

THOMAS CUTHBERT, R,OBEILT WAR-
REN GUMBLETON, JOHN LlNDSAY,..tDefendants in
AV IL LIAM M ASS EY BAKER, and j
DANIEL CALLAGHAN, Esquires,

LORD, CLIAXCF.LLOU.—.IIy Lords, There is a cause which
:was heard a few days ago before your Lordships, on a writ of
.error from Ireland. The question in it was in effect, whether
-ccertain Lases were executed under circumstances such as to in-
duce your Lordships to declare that they cannot stand; that
question is presented by the special verdict, in which the fol-
lowing facts were found :—" That one William Galway was
seized of the lands and tenements, in the declaration mentioned
,in his deniesr.., as of fee and being so seized thereof, an inden-
ture was executed by him, dated the 24th day of June, 1731,
whereby he demised certain parts thereof, in the declaration
anentioned, to Richard Pike, his executors, administrators, and
assigns, for the terns of eighty-two years, to be computed horn
.the Ist day of Nay, 1731, at the yearly rent of 561. sterling,
payable half yearly," at certain periods mentioned in the
especial verdict_" That under and by virtue of the demise,
Richard Pike entered and became possessed of the reversionary
interest belonging to William Galway, and :As heirs, according
to law." They then further found, " that Galway being so
seized of the rent and reversion of the lands and premises, in
the -demise contained, and being seized of the residue of the
lands and premises, in the declaration mentioned in his de-
anesne, as of fee, made his last will and testament, and devised
the lands and premises, in the declaration mentioned,• to his
:son, John Galway, for life, remainder to the first son of John
-Galway, and the heirs male of the body of such • first son, with
divers remainders over." The effect of this will, therefor!,
your Lordships observe, is this, that subject to the term of
eighty-two years, as to the lands comprised in that term, John
Galway was tenant for life, with remainder to hisfirst son in
tail; and with respect to the lands not comprised in that term
of eighty-two years, he was seized of those lands for life, with
remainder to his son in tail.

Then the Jury further found, " that the testator died seized
-of the pi-emises as aforesaid, and that after his death, his son,
.John Galway, entered into the lands and premises, by virtue of
the will, and was thereof seized, as the law requires, for the
term of his life." Then they found, " that Edward Galway,"
who-was one of the lessors of these plaintiffs, " was the first
_son of John ; and that after the death of the said William,
namely, on the 14th of November, 1765, an indented deed was
-executed by and between John Galway, the tenant for life, and
one William Jackson, by the name and description of the
Reverend William Jackson, stating the subject demised by the
indented deed ; and the substance of it was, a demise to Jack-
.son and his representatives for the term of thirty-one years, to
be computed from the Ist day of May, 1765, at the rent which
is mentioned, and which is the sum of 1601. sterling : the terms
of payment are then taken notice of, and that Jackson entered
by virtue of that demise ; that he became possessed of the pre-
mises, to him demised, according to law, and that Pike and he
were respectively possessed, as before mentioned.
Then the special verdict proceeds to state, that part of the
lands being comprised in the eighty-two years term, and other
part of the lands being comprised in the thirty-one years term,
and John being seized for life, with remainder to Edward in
tail, " an indenture was executed, dated the 17th .of May,
1772, between John and Edward Galway, of the one part, and
James Kearney and Thomas Sarsfield, of the other part, by
which, in consideration of the sum of 101. paid by Kearney and
Sarsfield, they bargained and sold."—My Lords, 1 stop here,
.:after mentioning the words " bargained and sold," because I
wish fairly to observe to your Lordships, that the de-
sseription of subjects which they bargained and sold, and
likewise the effect of that bargain and sale, seem to me
not to be quite so clearly stated in this special verdict
as one should wish, but no question having been made I
.at the bar upon the validity of the recovery, I think it'
would ,be quite endless, if we were to send back to Ire- I
land for farther findings in matters of this sort, and therefore,
-for the present I wish to take it for granted, that the recovery
was well suffered. "bargained, and sold, their respective
estates and reversions of and in all the lands and premises in
the declaration mentioned," for the clear and usual amount,
" to Kearney and Sarsfield, for one -whole year thence next en-
suing, by virtue whereof, and by force of the statute for trans-
eferring uses into possession, they became and were possessed,
,aecording to law, of the reversion and reversions ;" not using
again the words " estates and reversions," but the words being
-in the plural number in the first instance, " estates and rever-
-sions,' the effect of this appears to be not as affecting the
estates in the plural number, and reversions in the plural num-
• bet, but the reversion in the singular number, and the rever-
sions in the plural number, " of all and singular the premises
bargained and sold to them for one year ; that being so pos-
sessed, and John and Edward Galway beine so seized, an in-
dented deed was nettle, dated 18th May, 1772, between John
Galway of the first part, Edward Galway of the second part,
:Lord Viscount Clanwilliam of the third part, .James Nash and
Richard Reilly of the fourth part, and Kearney and Sarsfield
of the fifth part, by which for certain valuable and full consi-
sierations therein-mentioned, John and Edward Galway re-
•spectively released to Kearney and Sarsfield, and their heirs,
the respective estates and reversions of them, the said John and
Edward Galway respectively, in all and singular the lands and
premises aforesaid, amongst other things; and it has been ob-
served, and very fairly observed, at the bar, that it is a possi-
ble thing, that if we had been informed what these words,
-" among other things," mean, by the description of the sub-
jects to which the words are supposed to relate, it might have
required attention to the nature of those subjects, and the na-
ture of the interests in those subjects, in looking to the effect
of the power of making leases ; but here I apprehend, that if
that argument could be shewn to have any force and effect, it
was the duty of those who advised the drawing up of that spe-
cial verdict to have inserted, not in those general terms, but by
particular description, what the words " amongst other things '
really meant ; and we must take it, that if they had been ex-
spressly set forth, it would have made no difference in the ope-
ration of law—we cannot, by conjecture, suppose it would.
'We must take for granted, that the special Verdict was drawn
to the satisfaction of all who were concerned in the drawing of ,
that special verdict, " To hold to them and their heirs during
the lives of John and Edward Galway respectively, in order
that they might become perfect tenants of the freehold of the
premises, and that a common recovery might be suffered there-
-of," and I do not enter into the question, whether there does
--or does not exist any doubt about the validity of that recovery,
for the purpose of this proceeding, I take for granted that re-
covery was well suffered. Then it is declared, "that such re-
ecovery shall enure, and that the recoverer thereon shall stand
seized of the premises, to the uses and purposes here follow-
-ing, amongst others, that is to say, to the use df John Galway
-fox his life, with remainder to the use of Edward Galway, for
his life, with remainder to the use of John Galway, the younger
-son of Edward Galway,. for his life, with remainder to the
- son of John Galway the younger, and the heirs male of the
body of such first son, with remainders over;" the effect there-
afore of the recovery was, that John Galway, the father, being
tenant for life previous to the recovery, and Edward Gal-
way being tenant in tail, in remainder expectant upon
that estate for life, and the two having, therefore, in them
-the power of disposing of the estate by alienation exactly as
they pleased, they thought proper to reduce the estate of Ed-
ward, the son, from a tenancy for ii:e to a tenancy in tail, with
remainder over. The question upon this will be what they in-
tended—what extent of power of alienation they meant to reserve
to themselves under the power and authority affecting the estate.
The special verdict, with a view to induce the consideration of
that question, states, " that it was provided that the demise so
made to Jackson should be good and valid, according to the
;terms of the indenture of demise aforesaid." The demise made
..to Jackson, your Lordships will recollect, was a demise not.,
.made by the father and John, but made by the father alone for
.thirty-one years; it would have endured certainly during thirty-
.one years, if his life had endured for that time, but if he had
died in the coin-se of thirty-one years, the term would have been
;gone, for it could not exist longer than his life estate, but by
virtue of a Declaration of Uses, contained in this Recovery, it
is made a good demise, and it becomes material to observe that
the settlement itself takes notice that there is to be a term of
years antecedent to the estate for life of John, and, of course,
antecedent to the estate for life Of Edward.

Then' follows this Clause, ‘ilCo;idedalways that it shall and
may be lawful to and for the said John Galway, party to these
presents, and Edward Galway, jointly," that is to the two in-
dividuals who, by suffering a recovery, might have done what-
ever they thought proper with the estate, to them jointly, not
.to either of them singly, but to them jointly, from time to time,
during their joint lives, to demise the lands, tenements and pre.
Tithes, or any part or parts thereof ; "the power, therefore, un-
-der the words which I. have just stated, is a power that applies
to every part of the premises which were the subject of the set-
tlement ; it is a power " to demise the said lands, tenements,
and premises, or any part or parts thereof;" and I take notice
yof that the rather because if the words, "amongst other things"
had not constituted part of the special verdict ; but there had
been an express declaration of other premises, yet these words
would have been large enough to apply co all the premises
. which were so described " to any person or persons for any
number of lives or years ;" no limitation in point of number of
lives, or in the number of years, no limitation in point of num-
ber of years, so that the estate might have been given under the
power without limitation, either as to the number of lives or the
number of years for which the demise was to be made, and in
case that number of lives or that number of years was not such
,asoto go nearly, to exhaust the tnjoyment of the estate for ever,