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

it is added, that they are to be at liberty, jointly, to do this
":with covenants for renewal for ever, so as upon every of
such leases there be reserved and made payable, during the
continuation thereof respectively, the ancient or accustomed
rents or more, and.sn as none of the said leases be made dis-
punishable of waste by any express words therein, and so as in
every such lease there be contained a clause of re-entry for non-
payment of the rent or rents, to be thereby respectively reserv-
ed, and so as the lessee and lessees to whom such lease or leases
shall be made, seal and deliver counterparts of such lease and
leases, any thing herein contained to the contrary in any wise
notwithstanding."—llere I will just shortly observe, supposing
the execution of this power-not to be liable to any-other-objec-
tions, the objection that in the power of re-entry there was an-
nexed te condition that the re-entry should not take place until
a given number of days, and that it should not take place -if
there was a sufficient distress upon the premises. Theie two ob-
jections, supposing the execution of the power to be good in all
other-respects, are entirely removed by what was done in this
House in the Jersey case ; and I take the liberty to ntention that
case to your Lordships, for having very much relied in the very
humble opinion I took the liberty to state- in the House upon
what had been, as I conceived, very habitual in practice, quite
habitual in settlements of great estates, and perfectly habitual
in the office of conveyancers, it has occurred to me to have that
notion extremely strengthened, by having observed in instances
that have since conic before me, that that judgment is perfectly
conformable to practice ; indeed, I think 1 may almost go the
length of saying, that I hardly know a great estate in which, if
the judgment had been otherwise, all the leasers, or nearly all
the leases, would not have been bad.
There is then another leasing power, " provided also, that
it shall and may be lawful to and for the said John Galway,
during his lifetime, and to and for Edward Galway, Richard
Galway, John Galway the son, and William Galway, as and
when they shall respectively be entitled to the freehold of the
said lands and premises, by virtue of any of the limitations
aforesaid, by indenture under their respective hands and seals,
to demise the said lands, tenements, and hereditaments, or any
part thereof, to any person or persons, for pne, two, or three
lives, or for life or lives, or for any term of years not exceeding
thirty-one years, so as every such lease be made to commence
in possession, and not in reversion, remainder, or expectancy ;
and so as upon every such lease there be reserved and made
payable, during the continuance thereof, the most and best im-
proved yearly rent that can be reasonably had or obtained for
the same, without taking any sum or sums of money, or other
thing, by way of fine, and so as none of the leases be made dis-
punishable of waste by any express worde ; and so as in every
such lease there be contained a clause of re-entry for non-
payment of the rent or rents to be thereby respectively re-
served." And the usual requisition that the party shall deliver
counterparts.
-Your Lordships will perceive there are many marked dis-
tinctions between the first of these powers and the second of
these powers. In the first place, the first of these powers is a
power reserved to two persons to act jointly, which two persons,
previous to the execution of this settlement, had in them; jointly
the power of making any alienation whatever that they thought
proper to make of the estate, and that by virtue of the interest
which they had in the estate.. The next difference is, that
there is nothing here said requiring in express terms the lease
to he a lease in possession. It is further-to be Observed, that
with respect to that lease to Jackson, which is expressly made
good by the limitation to uses in'this 'recovery, John and Ed-
-ward -could not in this sense be-in possession, that they should
be in the actual pernancy of the profits of the soil, they were
entitled to the rent, and -therefore, in a sense, in possession,
but in a very different sense from that. Then the next dif-
ference to be attended to is, that the lease to be made was to be
not for any uncertain number of lives, but for a given number
of live*: it was to be a demise, not as the former was, for any
undetermined number of years, but it was to be for a limited
number of years, viz. years net exceeding thirty-one; and the
next observation upon it is, that there was to be no covenant
for perpetual renewal, so that the one was to be a lease, to be
made by persons who, previous to the indenture, had, by pass-
ing their interest in the estate, a power of alienating it as largely
as they thought proper. The power reserved is a joint power
to demise for any number of lives whatever, for any number of
years whatever, and if the lives and years did not in a great
number of them go to exhaust almost the whole interest in the
estate, yet they had the power to insert covenants for perpetual
renewal, which, according to the custom of- alienation in Ire-
land, would in truth provide for what may be almost repre-
sented quasi alienation of the whole property--
With these two powers jointly in John and Edward, and.
severally in John and Edward, and those to succeed, the spe-
cial verdict goes on to state, " that a recovery was suffered,"
which I take for the purpose of this cause to be duly suffered ~
and then it states, " that two indented deeds were executed
on the 23th day of October, 1789, between John Galway the
elder, and Edward Galway, parties to the deed of 13th
May, 1772, ' of the one , part, and Sir Richard Kellett,
Knight, of the other part, whereby, in consideration of
two respective sums of ss. they bargained and sold unto Sir
Richard Kellett, their respective estates anti reversions in the
premises in the declaration mentioned to hold for one year, by
virtue whereof, and by force of the statute for transferring uses
into possession,- Sir Richard Kellett became possessed of the
reversions as the law requires, and being so possessed, two seve-
ral indented deeds were executed on the 29th of October 1789,
between John Galway the elder, and Edward Galway, parties
to the indenture of the 18th of May 1772, by certain names
and descriptions therein mentioned of the one part, and the said
Sir Richard Kellett of the other part, by one of which, after
reciting the indenture of the 14th November 1765," that is the
first mentioned indenture " made between John Galway the
elder and Jackson, and containing a demise of part of the lands
and premises in the declaration mentioned for thirty-one years,
at the yearly rent of 1601. sterling, payable half yearly, then
reciting the release of the 13th of May 1772, the limitations
thereof, and the leasing power aforesaid by John and Edward,
and that they, by virtue of and under the leasing power for the
considerations therein and hereinafter mentioned, had agreed to
demise the dwelling house and other premises unto Sir Richard
Kellett for three lives, renewable for ever at the yearly rent of
1601. sterling,"—which your Lordships recollect is the exact
sum at which Jackson held, " but subject nevertheless to the
aforesaid lease so made thereof, by John Galway to Jackson ;
they, in consideration of 16001. sterling, paid by Kellett, and
in consideration of the rent, reservations, covenants, and agree-
ments thereinafter contained on the part of Sir Richard Kellett,
demised all the premises, estate, and effects, with the rights,
members, and appurtenances, saving always thereout unto
John Galway during his life, and after his decease, unto Ed-
ward Galway during his life ; and after the decease of the sur-
vivor of them to the person or persons Who, by virtue of the
deed of 1772, would be entitled thereto, and all mines, mine-
rals, and royalties, happening or being thereon, and likewise
all wood and underwood, and timber and timber trees, with
full and free liberty of ingress and regress to take and carry
away the same." 'To hold these during the three lives therein
inentioned,-and of these three lives, two, if not the three, are
still subsisting—two certainly, " and during the natural lives
of such other persons as should from time to time for ever
thereafter to be added, and inserted in any renewal to be ob-
tained thereof, pursuant to the covenants thereinafter contained
for perpetual renewal, but subject to the lease made to Jack-
son, yielding and paying with a proper reservation to the per-
sons respectively entitled to the rant or reversion, the yearly
rent or sum of 1601. sterling, which they aver, and the special
verdict authorises them in averring, is more than the ancient
rent of the premises ; and as much as is reserved on the 1 as!
so made to Jackson, the rent reserved to he payable half yearly
as therein mentioned, clear of all rates, taxes, charges, and im-
positions whatsoever (quit rent and crown rent excepted.")
Then follows this clause, " That if the reserved yearly rent
or any part thereof should be behind, and unpaid by the space
of twenty-one days next, after either of the days so thereby ap-
pointed for the payment thereof as aforesaid, that then and so
often as it shall so happen, it shall and may be lawful for John
Galway and his assigns during his life, and after his decease,
for Edward Galway, his heirs and assigns, or such other person
or persons as from time to time shall be respectively entitled to
the rent and reversion of the demised premises, under and by
virtue of atiy of the limitations in the recited indenture of re-
lease of the 18th of May 1772, contained into the lands and
premises, or any part thereof, to enter and distrain, and the
distress and distresses there had and found to. take, lead, drive,
carry away," together with all the words conveyancers usually
put into a clause of distress, and there are generally enough of
them, " until the rent and all arrears thereof, and all costs,
charges,. and expences attending the recovery thereof be fully
paid and satisfied ; and for want of sufficient distress so to be ,
had and found thereon, that then it should be lawful for John ,
'Galway and his assigns during his-life, and after his decease,
to and for the said Edward Galway, his heirs or assigns, or
such other person or -persons as from time to time shall re-
spectively be entitled to the rent anti reversion of the demisel
premises, under and by virtue of the limitations in the deed of
18th May 1772, contained into the demised lands anti premises,
or any part thereof, in the name of the. whole, to re-enter, and
the same and every part thereof to have again, repossess and
enjoy as in the first and former estate."
Then follows a covenant on the part of Sir Richard Kellett,
which I think it is not necessary to detain your Lordships with
stating, except to call your Lordships' attention to the words
" that he would quietly yield and surrender up the same (casu-
alties of fire and war excepted)," upon which some argument
has been addressed to your Lordships at the bar : then follows .
the covenant for renewal, the effect of which is stated in the
words which are to be found at the close of the covenant,
namely, " the intent and meaning of the said indenture, and of
the parties thereto being, that Sir Richard Kellett, his heirs,
and assigns, should always have a subsisting lease for three
lives, renewable for ever, in the demised lands and premises."
Then, my Lords, the special verdict goes on to introduce the

defendants in error, between whom and another. person the
'question now arises; and I tlink I may venture to state to
every such proposition, that if there had been no leases, neither
the lease for eighty-two years, nor the lease for thirty-one
years, affecting any of these Remises, this would he a case in
which no question would arise, except the question that might
arise upon the words " casureties of fire and war excepted,"
but the objection to the judgment below is of this nature—lt
is said, that, in the first place, it is admitted, or rather, 1 think,
I should express myself more correctly If I were to say it
ought to be considered as clear, though not admitted, that is
an expression that imports to, much ; but I think we who are
to proceed-to- judgment; may fairly represent that' it is quite
clear upon these irroceedings„ that as John and Edward Gal-
way had the whole estate in them at the time this recovery was
suffered,. thong!' they narrowed their interests in thiS way, that
is, that they-limited to Edward the son, instead of an estate
tail an estate for life, and though, therefore, by the operation
of that recovery, John and Edward would cease, by virtue of
their int:vest in the estate, to have • a power of alienation ; yet
that it was the intent and meaning of John and Edward, not
that John alone should, not that Edward alone should, but
that they who together, by virtue of their interest, prior to the
recovery, could' have alienated the whole of the estate; should,.
by virtue of a joint execution of some power, have, in effect,
the authority to make what I may call an Irish aliena-
tion of the estate, that is to say,, that they might alienate it for
any number of years, and make it a sort of perpetual aliena-
tion, that they might accompany that demise, for any number
of lives or any number otyears, with a covenant for perpetual
renewal, which being fro ffi time to' time carded into eIA.-cution,
would effectuate an alienation in perpetuity ; that that was their
intention, and supposing these had been no such thing as this
antecedent term for eighty-one years, and this antecedent term
for thirty-one years, and taking it now:to be well settled that
the power of re-entry being apower of re-entry after twenty-one
days' non-payment of rent, and being a power of re-entry . for
want of sufficient distress, dees not render it an improper power
of re-entry—l (say, taking that for granted, I think nobody
can, in judgment, deny that those leases would have been 'good.

But then the objection to the leases, which objection has been
got over in the Court of Ireland, is of this question : They say
that the power which is contained in this settlement as a power
of re-entry for non-payment of rent, ought to be considered
with this degree of strictness, not that the leases are good, if
there be any mode of re-possessing the estate of the lessor in
case of non-payment .of rent, but that there must be, in the strict
sense of the words, what is denominated and known by the
name of a power of re-entry for non-payment of rent, and they
say that inasmuch as to part of the premises there was an exist-
ing term of eighty-two years, and as to another part of tNe. pre-
mises there was an existing terns of thirty-one years,. and this
demise is made to col-lime:see from the date of the demise it-
self, that it may be represented in some sense as a concurrent
interest in the estate, in point of time I mean, and that there
being these two terns, one of eighty-two years and the other of
thirty-one, which required no confirmation by the settlement,
because that term of eighty-two years was created by a previous
deed, but there being that term of eighty-two years, and there
being the term of thirty-one years made good and effectual for
the whole term of that thirty-one years, by the recovery of
1772, there is that intermediate estate between the lessor's es-
tate and the estate which this lessee has, which would go to
prevent the effect of a power of re-entry for non-payment of
rent, understood according to the strict sense of these words,
" power of re-entry for non-payment of rent.','
Here, my Lord, the question is this, whether looking to tho
interest of the parties and looking at the intent of the parties,
and looking at the purpose for which tht power was inserted in
this deed, you are to say, notwithstanding such was the inte-
rest of the parties, and notwithstanding such was the intent
of the parties, and notwithstanding the intent with which
the power was reserved, still the parties have so mistaken their
way in the formation of this settlement, that by no construction
whatever to effectuate that intention can you give effect to these
leases. My Lords, I have always understood that with respect
to powers you ought, as far as you can, to endeavour to effec-
tuate the intent With which the power is reserved. Now, what
the interest was with which the power is here reserved, is quite
clear : these persons had, before they executed the settlement, a
joint interest—not a joint interest indeed, but respective interests
in the estate, which gave them jointly; if I may so express it,
by virtue of their interest, a power of alienating the estate for
ever. M'ith respect to the premises in question, they thought
fit to reserve a power which still does not enlarge what either
of them could do by virtue of the interest which they respec-
tively had in the estate prior to the execution of the settlement,
but meaning still to continue a power of alienating in another
form the estate for ever, that which they were to do by a joint
application of their several interests, such as they had prior to
the execution of the settlement, they were now to do by virtue
of the execution of the joint authority reserved to them by
themselves, the grantors, in the settlement to be jointly exe-
cuted. 'Why, my Lords, the settlement also, which is of very
material consequence—the settlement in which this power is
reserved, expressly takes notice, that there is a lease for 31
years of part of the premises, and therefore the settlement
taking notice that there is a lease for 31 years of part of the
premises (and they could not but know there was a lease for
82 years of another part of the premises), and the settlement
expressly providing, that that lease for 31 years shall be consi-
dered as a valid lease, after the execution of the recovery, it
was unnecessary for them to say that the lease for 82 years
should be considered as a valid lease after that recovery was
suffered, for it was so whether they said so or not. Their in-
tention must therefore have been, to have enabled themselves,
by the execution of a joint authority, so to deal with the estate
under the execution of the power, notwithstanding there was
this term of thirty-one years over-riding the life estates, which
they refesectively took under the effect of the settlement, and
notwithstanding teere was this term of eighty-two years over-
riding the estates they respectively took under the settlement,
and then the question comes to this, whether if there is not in a
strict sense a power reserved ; but if, by virtue of the legal
operation of what they have done, in case there was non-pay-
ment of rent, they could have again re-possessed themselves of
the estate, that is not to be considered according to what must
be understood to be the intent and meaning of such an instru-
ment as this--.a right to re-enter for the purpose of re-possess-
ing themselveS of the estate. Now, the way in which they
have executed this power, unless I misunderstand it, is this,
they have executed it in such a way, that the rent reserved
under Jackson's lease, I apprehend, would go to the lessees
who took under the execution of this power, then it comes to
be a question in point of law, whether, becatfse the lessee un-
der this instrument would be entitled to Jackson's rent, which
your Lordships recollect is exactly the same as the rent re-
served by this lessee himself, the rent under the terns belong-
ing to the lessee, and the lessee taking the lease by value of that
conveyance which gave him a title to the rest, his interposing
title to that rent, if I
may so express it, is to have the operation
of making his lease good for nothing.
My Lords, I have looked with very great attention into all
the doctrine I can find on the execution of powers, as well in
writers as in cases, and I must confess, after a strong inclina-
tion to hold a different opinion, I have brought myself to think,
that inasmuch as by a claim made they might afterwards bring
ejectment in case there was non-payment of this rent, and re-
instate themselves in the same situation as they were before the
execution of this power, that, upon the whole, the judgment
from which this writ of error comes is right; and I am the more
inclined to alter my opinion upon that subject, because I believe
it arose from my mind being a little impressed by the feeling
with which an English lawyer looks to this mode of perpetual
renewal--by those feelings natural to my mind, as being more
conversant with the mode of English alienation than of 'lrish ;
but attending particularly to that case of Coventry v. Coventry,
and \tr. Sugden's book, which goes a great way, I think, to esta-
blish the point I have alluded to, it does appear to me thatshis
is an execution of the power which goes to effectuate the intent
of the parties to the settlement, who had such an interest as
these individuals had prior to the execution of this deed, who
took notice of that lease which must therefore have been in °eel'.
minds, and who evidently intended to reserve to themselves a
power of alienating in the form in which they here do or have
purposed at least to do, and that it is the duty of a Court of
Justice to give effect to that intent if it can ; and on the best
consideration I can give to tile subject, I do not see any conclu-
sive objection against it. I am of opinion, therefore, your Lord-
ships ought to affirm this judgment.
My Lords, Phave in this case deviated from the usual course
of proceeding where there is a motion to affirm judgment, but
the ease appeared to me special in its nature, and that therefore
it was not unfit to travel at least so far into the reasons not very
much in detail, but generally the grounds upon which it does
appear to me, at least, that this judgment ought to be affirmed.
Your Lordships will have the assistance of another Noble Lord
who is now in the House, and who, being very conversant with
the effect of Irish settlements, can certainly give your Lordships
much useful information upon the subject.
Lord REDESDALE—My Lords, this case is so important
with respect to property in Ireland, where a great portion of the
land is held under leases for lives renewable for ever, that I
shall take the liberty of trespassing upon your Lordships' time
for a few moments. And first of all I desire to reprobate any
idea, that because political inconvenience has been produced in
Ireland by leases for lives renewable for ever, therefore your
Lordships are to have a different disposition in forming your
judgment on the construction of leases of that description in
Ireland, than you would on the construction of leases of that
description in this country. Ido not apprehend that political
considerations of that description in any measure belong to a
Court of Justice, and therefore I lay that consideration wholly
out of the case ; and 1 mention it only for the purpose of de-
claring my opinion that as long as the Legislature shall think
fit to permit such leases, the consequence must be that Courts