Jackson v. Saunders [1814] UKHL 2_Dow_437

UKHL
Jackson v. Saunders
[1814] UKHL 2_Dow_437
Demand for fines made under the Tenantry Act on 6th October, 1800, (after all the lives had dropped,—one in 1789, another in 1791, and the last in August, 1800; and repeated applications since 1798 for payment,) and no tender till March, 1801, after ejectment brought by the landlord. Held, that the tenant had forfeited his right to renewal;— the offer to pay and renew being considered, under the circumstances, as delayed for an unreasonable time.Sentiente Lord Eldon, that the delay after the demand was unreasonable, though there had been no prior neglect, and ( concurrente Lord Redesdale) that no particular formality in the demand was necessary; that it need not be of a specific sum; that it need not be in writing; that no special power was necessary to authorize an agent to make the demand and receive the fines; that a subsequent demand was no waver of a prior demand, unless the terms of the subsequent demand were complied with; and that, in considering what was a reasonable time after demand, prior applications and circumstances were to be taken into account.Dubitante Lord Eldon, whether—where a tenant was taken bound, on the dropping of any of the lives, to pay a fine and nominate another life; or, in case of neglect, to pay interest on the fine—the meaning could be, that the tenant should have the option to postpone renewal till the last life was about to expire. Sentiente , if such was the meaning, that it was not a covenant which equity would specifically execute.Bill filed April 20, 1801.This case arose upon a bill, in the nature of a bill for specific performance, filed in Chancery, to compel

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Lease.The lease was made in 1699 of the lands of Cumber, King's County, by a Mr. Weaver , the then proprietor, to two persons of the name of Lamb , for three lives, with covenant for perpetual renewal. In 1724 the estate and inheritance became vested in Robert Saunders, the Respondent's ancestor, to whom the joint lease was surrendered by the Lambs; and he granted two separate leases, one to each of them, for three lives, with covenant for perpetual renewal. The covenants in the lease of the north-west part of Cumber (those in the lease for the south-east part being the same) were in these words:—Covenant for perpetual renewal.the life or lives that then should be in being; and also then to pay to the said Robert Saunders, his heirs, and assigns, one full half year's rent. And if the said Richard Lamb, his heirs, or assigns, neglect or refuse so to do, then the said Robert Saunders, his heirs, and assigns, shall be allowed interest for the said fine from the death of the person or persons so dying .”
“And the said Robert Saunders doth for himself, his heirs, and assigns, covenant to and with the said Richard Lamb, his heirs, and assigns, that as often as it should please God to take away by death any of the before-named Edward Lamb, Richard Lamb, and Thomas Mitchell, (the lives in the said indenture named,) he the said Robert Saunders, his heirs, and assigns, shall put in another life of such person as shall be named by the said Richard Lamb, his heirs, or assigns, still to keep up three lives in the present demise.”
“And the said Richard Lamb doth for himself, his heirs, and assigns, covenant to and with the said Robert Saunders, his heirs, and assigns, that within four months after the death of any of the before-named Edward Lamb, Richard Lamb, and Thomas Mitchell, he will nominate one other person whose life shall be added to this lease, to

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It was also covenanted, that the tenant should once in every six months, if required, procure and deliver to the landlord a credible certificate of the persons being alive whose names were in the lease, or might be in any farther lease by renewal thereof; and that a life being beyond seas and not heard of for three years should be taken as dead, and renewal accordingly, &c.Lives dropped.In 1755 the interest in both leases became vested in Robert Jackson, Appellant's ancestor, who at that time obtained a renewal of the lease of the north-west part of Cumber, now particularly in question. One of the lives dropped in 1788, or 1789; another in 1791. No steps were taken for several years for renewal, because the tenant, as he afterwards alleged in his bill, was then very much embarrassed in his circumstances .Applications to renew.—Evidence.Application, July 9, 1800, threatening to refuse renewal.Formal demand, Oct. 6, 1800.Tender, March, 1801, and refusal to renew.Question as to a draft of renewal.The applications on the part of the landlord to the tenant to renew, of which there was any distinct evidence, began in 1798; and both in 1799 and 1800 several applications were made:—one in 1799 by the Respondent himself; another by Thomas Saunders, Respondent's solicitor, in March, 1799. Applications to the same effect were made to the Appellant's solicitor, Peter Jackson. T. Saunders

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The bill for performance was then filed; and, after answer, &c. the Lord Chancellor, ( Redesdale ,)

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Romilly and Leach for Appellant; Hart and Bell for Respondent.July 25, 1814. Observations in Judgment. Lord Redesdale.Kane v. Hamilton , 1 Ridg. P C. 180.— Bateman v. Murray , 1 Ridg. P. C. 187.Irish Tenantry Act, 19, 20, Geo. 3, cap. 30.The true construction of the act was, that equity should relieve in cases of mere neglect.Not necessary for the landlord to say, in making the demand, that he insisted on the forfeiture in terms of the act.Letter of T. Saunders, July 9, 1800. Demand, Oct. 6 1800.Waver.Lord Redesdale . This case depended on the construction of an Act of the Irish Parliament, commonly called the Tenantry Act, which was founded on the practice prevalent in that country of granting leases for lives, with covenant for perpetual renewal. This act was supposed to have originated from certain decisions of this House at that period, before the Union, when the appellate jurisdiction was exercised by the House of Lords in England. The case was simply this (states it as above.) It seemed to have been the idea of Saunders and his advisers, that a formal demand, with notice that it was intended to insist on the forfeiture in case of refusal, was necessary. It appeared to him, however, that there was nothing in the act to show that the demand must be of that description. The words were, that Courts should relieve against lapse of time, “unless it be proved to the satisfaction of such Courts, that the landlords, or lessors, or persons entitled to receive such fines, had demanded such fines from such tenants, or their assigns; and that the same had been refused or neglected to be paid within a reasonable time after such demand.” The true construction of this act, as it struck him, was, that Courts of Equity should

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“I have often demanded my fines, and you have not paid them; then I make a formal demand, and if you do not renew, I insist on the benefit of the act.”
This last proceeding was certainly candid, and might be considered as a sort of waver of the prior demand, if the fines had then been paid without farther delay. The question therefore now was, Whether, after the demand in October, 1800, Jackson took the proper steps to renew?Evidence.The demand by letter of July 9 was sufficient under the act.The evidence depended, first on the depositions of Mr. Thomas Saunders, the agent of Saunders the Respondent, who made the demand in October, 1800, and spoke to several prior applications to the Appellant to renew. The first of which he gave an account was in the Hall of the Four Courts, in 1799; where he said he was present when the Respondent applied to the Appellant and required him to pay the renewal fines then due. He then stated, that after making several applications personally and by letter on behalf of the Respondent, he wrote to the Appellant on the 9th July, 1800, calling upon

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Ejectment. Jan. 1801.Bill for performance, April, 1801.Nothing effectual was done in October, November, or December, 1800; and, in January, 1801, the Respondent brought an ejectment to recover possession, the lives having dropped. The ejectment proceeded, and an application was made by the Appellant to stay it upon terms which were not

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No tenant to forfeit for neglect merely; but the demand, and non-compliance in reasonable time, converted this into more than mere neglect.Reasonable time—what?In considering what is a reasonable time after demand, the previous transactions are to be taken into account.When this cause came on to be heard in Ireland, he had the honour to be Chancellor there; and it appeared to him that the object of the act was simply this,—that no person should suffer through neglect merely; but that if a demand were made and not complied with in a reasonable time, it converted this into something more than mere neglect, and entitled the lessor to insist in equity that the interest of the lessee was gone: and the question was, What was a reasonable time? In this case it was clear, that though a formal demand was made on the 6th October, 1800, no effectual step was taken by the Appellant to renew till after the ejectment had been brought. If no transactions had passed before between the parties, it might have been a different question. The proper construction of the act, as it appeared to him, was, that after demand the tenant should lose no time in taking the necessary steps to renew. But here he had, for two or three years, been told that it was incumbent on him to renew, and he had all that time to prepare; and therefore the demand in October could have been no surprise on him, and he ought to have renewed immediately.Draft of renewal—whether sent to appellant's Agent in March 1799, or 1800, or only in Nov. 1800.

Some difficulty had arisen on this ground. In

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Decided cases.1722. 2. Bro. P. C. 430.

Kane v. Hamilton , 1774. 1 Ridge. P. C. 180.—

Bateman v. Murray , 1777. 1 Ridge. P. C. 187.The act has left it to the Judge to say, in his discretion, what is a reasonable time.Any fixed rule as to the time would be mischievous. The question must depend on the particular circumstances of each case.A life ought immediately to be nominated in terms of the covenant, otherwise the landlord might lose several fines.Reference had been made to cases decided before the act; but he did not know that these were very material in a question respecting the construction of that act, because the object of the act was to obviate a supposed contradiction between the cases decided in Ireland, and the decisions in this House. The earliest case on the subject was said to be that of Anderson v. Sweet . That was a case of mere negligence in both parties. There were other cases, in some of which the renewals had been granted, in others refused. The case which first excited alarm was that of Kane v. Hamilton . That depended on very particular circumstances, which put neglect quite out of the question. Another case of this class, Bateman v. Murray , came to this House soon after, which appeared to him to have been clearly a case of fraud, and not of mere neglect; and nothing that was said by Lord Thurlow , on that occasion, could go the extent of justifying the notion, that the Court here had overlooked all the cases that had been decided in Ireland before. The manner in which Lord Thurlow stated it was, “that equity would relieve the lessee if he lost his right by fraud in the lessor, or by accident on his own part , but would never assist him where he lost his right by his own gross laches, or neglect .” Whether these cases ought to have any influence in the construction of the act, he left it

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Lord Eldon.Meaning of the covenant.Lord Eldon (Chancellor.) In this case there had been two decrees, one of Nov. 30, 1802, dismissing the bill with costs, the other of Dec. 22, 1804, varying the former decree only by dismissing the bill without costs; and their Lordships had heard stated to them the grounds upon which these decrees proceeded. The difference between the Appellant and Respondent arose upon this state of facts (states the lease 1724, and reads the words of the covenants; states also the renewal in 1755, and the dropping of two of the lives, one in 1789, the other in 1791, &c.) The Appellant then represented, “that at the time when these lives dropped he was, and ever since has been, very much embarrassed in his circumstances, in consequence of debts and incumbrances incurred by his father, which affected his said property; and by means of an expensive suit in which he was involved in the Court of Chancery in Ireland; his endeavours to extricate himself from which engaged all his attention.” He solicited their Lordships' attention to that passage, because he could not conceive that

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Contracts.— Relief in equity on compensation made.Imperfection of the principle of compensation as a ground of relief in equity.Then it was said that the Appellant was entitled to a renewal even if the Tenantry Act had never passed, upon the equity of relieving against lapse of time, on full indemnity being made to the landlord. That was done in equity here in many cases; (in Ireland they had gone farther;) and they were now bound to proceed on the notion, that men were not, in all cases, to be held to their contracts, but that equity would relieve where the matter lay in compensation. Where the condition was for payment of money at a certain time, the time was not of the essence of the contract; and this, it was said, was a matter which lay in compensation, and if interest should be allowed from the period when payment ought to have been made, this was considered as compensation, and equity would relieve notwithstanding the want of punctuality. Without entering at length into that subject, this must strike every one, that where the money, instead of being paid on a certain appointed day, was not paid till 12 months after, the

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Kane v. Hamilton , 1 Ridge. P. C. 180.— Bateman v. Murray , 1 Ridge, P. C. 187.In certain cases which had been referred to, great astonishment had been expressed at the length to which the Courts in Ireland had gone, and the decisions followed which produced the Irish Tenantry Act.The question considered with reference to the Tenantry Act, 19, 20, Geo. 3. C. 30.This led him to another point. The Appellant contended that in case he were not entitled to a renewal under the terms of the covenant itself, or upon the common rules of equity, he had still a right to a specific performance under the effect of the Tenantry Act, which said, that mere neglect should not deprive the tenant of his right to renewal, but that if he paid his fines within a reasonable time after demand made, he should still have a

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July 26, 1814. Observations in judgment resumed.Meaning of the covenant, if such as contended for by Appellant, it would not be specifically executed.Lord Eldon (Chancellor.) He had before stated to their Lordships the three principal points contended for by the Appellant:—1st, That till August 1800, the time when the third life dropped, he was entitled to a renewal according to the strict terms of the covenant. 2d, That he had a right to a renewal upon principles of equity, independent of the statute. 3d, That he was entitled to a renewal under the Tenantry Act, having tendered the renewal of fines within a reasonable time after demand made, supposing that demand to have been sufficiently formal and peremptory. He believed he had gone sufficiently far into the consideration of the reasonableness of a covenant with such a meaning to enable him to say, that a covenant would not be specifically executed by a Court of Equity, if attended with the consequences which followed upon the construction contended for by the Appellant. That construction as already stated was, that the tenant was not called upon to renew and pay a fine immediately on the dropping of any of the lives, but had the option to renew at any time during the existence of the third life, to postpone the renewal for 50 years, paying interest on the fines; whereas if on the dropping of any of the lives another were always immediately nominated, five, six, seven, eight, or ten lives might fall, and as many nominations take place in the course of these 50 years, and so many fines become payable to the landlord. That could not be the meaning of

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Tenantry Act. Whether it afforded a ground of relief.As to the second point, that had been but faintly urged; and it appeared to him impossible to sustain it.Demand.—Whether it ought to be of a specific sum.And that reduced the question to this, Whether, under the Tenantry Act, relief ought to be given. The first life dropped in 1788 or 1789, the second in April, 1791, and the third in August, 1800, and then there was a proposition to renew, which was not very seriously acted on till 1801. Here he should notice some general observations which had been made with a view to take the demand in this case out of the Tenantry Act. The first was that the demand ought to be for a specific sum. There was nothing in the act which said so. It must occur that the tenant would be most likely to know the time of the death of the life, and it was his business to come forward and make the proper tender; and if, at the time of a demand made, the tenant himself did not happen to know what was the specific sum, the question then would be, what was a reasonable time for settling it.What was a reasonable time—whether a time ought to be fixed by the Courts.Time of redemption in foreclosure cases—the time there not fixed.Another point contended was, that according to the act their Lordships ought to say what, in every case, would be a reasonable time; as in foreclosure cases the Court of Chancery uniformly allowed six months for the mortgagor to redeem. That however was a very different subject: but even there, though now it was the practice on account of its antiquity, rather than the reason of the thing, to allow six months, the Court was in the habit, according to circumstances, the value of the subject,

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Mountnorris (Earl of) v. White (vide post.)

Another consideration of great weight was this: He had before alluded to the surprise felt in this country at the extent to which the Courts of Equity in Ireland had carried the practice of giving relief in these cases of leases for lives with covenant for perpetual renewal; and it was certainly very extraordinary, that where a lessee covenanted to pay a fine in two, three, or four months, from the death of any of the lives, and where there was an express proviso, that if he did not then it should rest entirely in the option of the lessor, whether to renew or not, equity should relieve in a case of strong neglect in the tenant, and where the damage to the landlord was eventual and uncertain, and therefore not a proper subject of compensation. But to say that the act should be construed so as to apply to cases of this kind the same sort of rule as to time (six months) as had been applied to redemption in cases of mortgage, though the parties themselves had said that unless the lessee renewed in two, three, or four months, it should be at the option of

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The rule as to time in foreclosure cases not applicable.Tenantry Act.Compensation.Long neglect and supineness—whether they might not amount to a fraud?Then they came to the terms of the statute:
“Whereas great part of the lands in this kingdom are held under leases for lives with covenants for perpetual renewal upon payment of certain fines, &c.; and whereas from various accidents and causes tenants, and those deriving under them, have frequently neglected to pay or render such fines within the times prescribed by such covenants after the fall of such lives respectively; and whereas many such leases are settled to make provision for families, &c.; and whereas it has for a long time been a received opinion in this kingdom, to which some decisions in Courts of Equity, and declarations of Judges, have given countenance, that Courts of Equity would relieve in such cases against lapse of time, upon giving adequate compensation to the persons to whom such fines were payable, or their representatives, to the end that such interests may not be defeated by mere neglect , &c. Be it enacted, &c. that Courts of Equity, upon an adequate compensation being made , shall relieve such tenants, and their assigns, against such lapse of time.”
He need not repeat what he had said respecting the extraordinary notion of equity as to what was compensation, but he should be very unwilling to apply in these cases the sort of rule which was adopted in cases of mortgage, when he considered that in six

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Demand.A special authority to demand and receive the fines not necessary.Not necessary that the demand should be in writing.Importance with reference to the Tenantry Act, of holding the balance even, as between landlord and tenant.Then the act went on:
“If no circumstance of fraud be proved against such tenants, unless it be proved to the satisfaction of such Courts that the landlords, or lessors, or persons entitled to receive such fines, had demanded such fines from such tenants or their assigns, and that the same had been refused or neglected to be paid within a reasonable time after such demand .”
In this case there was no difficulty as to whether the person

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What was a reasonable time must depend on the circumstances of each particular case.Waver.—A subsequent demand not a waver of prior demands, unless the terms on the subsequented demand are complied with.In considering what is a reasonable time after demand, previous applications and neglect are to be taken into account.It had been said that some time must be fixed, as that which should be considered as a reasonable time. But what was or was not a reasonable time must depend on the circumstances of each separate case. It had also been pressed, that a subsequent demand was a waver of a previous demand. He could not however so readily accede to that doctrine. It might or it might not be a waver, and

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Then in the fair and reasonable construction of this act, looking at all the evidence and all the circumstances, had or had not the tenant been put in mind that he had neglected to pay fines that were due? had not a demand been made? and had there not been a refusal or neglect, for a longer period than could be properly called a reasonable time? Had there been more than a reasonable time? That was a question of fact. He ( Lord Chancellor ) said, that applications had been repeatedly made, and not complied with in reasonable

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Judgment.Decree accordingly affirmed .Solicitors: Agent for Appellant, Lane.Agent for Respondent, Fladgate.