1849. Rolls. STEWART V. June 6, 7. Dec. 20. 1850. Jan. 29, 31. 1851. Jan. 23. April 16. under which lands sold by private contract were THE MARQUIS OF CONYNGHAM. (In the Rolls.) Letters patent, THE bill in this cause was filed for the specific performance of an agreement for the sale of an estate called the Tyrcallen Estate. The common interlocutory order of reference was made to the Master to inquire whether the plaintiff, the vendor, could make by the grantee a good title to the estate, and if so, at what time he showed a -first, that he held, contained covenants would place good title. The Master, by his report of the 3rd of May 1849, three free te nants of Eng- found the title good, and the purchaser took ten exceptions to the lish or British race, blood or report. name on the premises, each of whom should have fifty acres, or one free tenant, who The facts of the case, the substance of the several exceptions, and the principal arguments of the Counsel, are fully stated and commented on in his Honour's judgment. should have one hundred acres for one life; secondly, that he should have on the premises eight cullivers, or muskets, and a proper number of arms to arm eight pikemen for his defence against rebels, &c.; thirdly, a proviso, that if he should demise any part of the premises to the mere Irish for any term exceeding forty-one years or three lives, or if he should demise the premises limited to be disposed of to any British or English person, to any person being mere Irish, the Crown might reenter. The particulars of sale described the lands as a valuable fee-simple property, and one of the conditions of sale alluded to the letters patent. It appeared from a statute (10 Car. 1, sess. 3, c. 3,), and certain public documents therein referred to, that the covenants were those inserted in patents at the plantation of Ulster, where the lands were situate. Held, that the purchaser, having express notice of the letters patent, was bound by constructive notice of the covenants contained in them. Held also, that the first and third covenants were no longer in force, every subject of the Crown since the Union being a person of British race, name and blood, and there being no person now answering the description of mere Irish. Semble-The second covenant could not be now enforced by the Crown. By marriage articles the husband agreed to settle out of the lands of K., in failure of A his daughter by a former marriage, a jointure on his intended wife, the remainder of the lands on the issue male begotten on the wife; and in failure of issue male, on the issue female; and in case A should survive, and the lands of K. should not be made good, that then the lands of K., which were not settled on the former marriage, should be subject to the jointure, and be settled on the eldest son of the marriage, and in failure of the said son, on the daughters of the said marriage. There was no male issue of the marriage, but female issue, B, C and D.-Held, that the lands of K. should be settled on them as tenants in common in tail. No settlement was executed, and the lands descended to A, B, C and D, subject Mr. Hamilton Smythe and Mr. F. A. Fitzgerald, in support of the exceptions. Mr. R. R. Warren and Mr. Christian, for the report. The following authorities were cited upon the second, third and fourth exceptions:-Martin v. Cotter (a); Burnell v. Brown (b); Seaman v. Vawdrey (c); Barton v. Lord Downes (d); Larkin v. Lord Rosse (e); Lyddal v. Weston (f); Pope v. Garland (g); Spunner v. Walsh (h); Mayor of Congleton v. Pattison (i); Bristow v. Wood(k); Vaughan v. Magill (1); Walter v. Maunde (m); (a) 9 Ir. Eq. Rep. 351. (e) 10 Ir. Eq. Rep. 70. (g) 4 Y. & Col. Exch. 394. (i) 10 East, 130. (1) 12 Ir. Eq. Rep. 200, 207. (b) 1 Jac. & W. 168. (d) Fl. & K. 505. (f) 2 Atk. 19. (h) 10 Ir. Eq. Rep. 386. (k) 1 Col. 480. (m) 1 Jac. & W. 181. 1849. Rolls. STEWART v. MARQUIS OF CONYNGHAM. Argument. to the trusts of the articles in 1763, when B, C and D went into possession. In 1783 they levied a fine, and conveyed to a purchaser for value, and covenanted that they were seised in fee. There were several subsequent conveyances for value. In 1847 the lands were contracted to be sold.-Held, in a suit for specific performance against the purchaser, that the legal title of A and her heirs to one-fourth of the lands was barred by the Statute of Limitations, as a Court of Law would not notice the executory trusts of the articles, and the several conveyances operated as disseisins. Semble-The equitable title of the heir of A, on failure of issue of B, C and D, was also barred; but Held, that as a fine created no discontinuance in equity, the title was too doubtful to be forced on the purchaser. A conveyance of all her estate, &c., was obtained from the devisee of the heir-atlaw of A, and was held to put an end to the objection; for although the reversion belonged to the heir of the settlor, he must trace title through the daughters, and all their right was extinguished by this conveyance and the fine. A recovery was suffered by a tenant for life, and remainderman in tail in 1781. The record stated that the tenant to the præcipe called to warranty the tenant for life, who appeared by his attorney, and warranted the tenant in tail, who appeared in person.-Held, that the recovery was valid, though the record did not state a summons to warranty, nor a warrant of attorney to authorise the appearance for the tenant for life. After exceptions allowed to the Master's report of good title in a suit for specific performance, the practice is not to discharge the purchaser, but at the request of the plaintiff to refer it back to the Master to review his report, and to inquire whether a good title can be made to the lands. A purchaser relied on the memorial of a deed as creating an objection to the title, and succeeded on an exception founded on it :-Held, that he could not afterwards object that the deed itself was not produced, although there was no condition of sale to dispense with its production. The particulars of sale stated that the timber on the estate would be included in the purchase. Title was not made out to the timber on a very small portion of the lands. There being no misrepresentation, the Court referred it to the Master to inquire whether the timber on that portion was material to the possession and enjoyment of the estate. 1849. Rolls. ᏚᎢᎬᎳᎪᎡᎢ MARQUIS OF Argument. Paterson v. Long (a); The Duke of Bedford v. The British Upon the fifth exception-Chilliner v. Chilliner (c); Fearne Cont. Rem. p. 105; Campbell v. Sandys (d); Thompson v. Simpson (e); Cordwell v. Mackrill (f); Doe v. Phillips (g); Doe v. Lloyd (h); Hilary v. Walker (i); 1 Sugd. Ven. p. 633; 2 Inst. p. 335; Bale v. Coleman (k); Blackburne v. Staples (1); Jervis v. The Duke of Northumberland (m); Hart v. Middlehurst (n); Dod v. Dod (o); Taggart v. Taggart (p); Fausset v. Carpenter (q); Earl of Pomfret v. Lord Windsor (r); Keene v. Deardon (s). As to the remaining exceptions—Anonymous (t); Pig. on Recoveries, p. 196; Swann v. Broome (u); Framlingham v. Brand (v) ; Rex v. St. Luke's Hospital (w); Cruise on Recoveries, p. 53; Wynne v. Lloyd (x); Lord Cromwell's case (y); 1 Preston on Conv. p. 16; 2 Inst. p. 335; Pledall v. Pledall (z); Doe v. Lloyd (aa); Doe v. Phillips (bb); In re Lamont (cc); Rogers v. James (dd); Forster v. Forster (ee); Hume v. Burton (ff)· Dec. 20. Judgment. The MASTER OF THE ROLLS. In this case the bill was filed against the defendant to compel the specific performance of an agreement, dated the 24th of April 1845, for the purchase of the Tyrcallen estate, situate in the county of Donegal. The usual order of reference was made on the 24th of May 1847, whereby it was referred to the Master to inquire and report whether or not the plaintiffs could make a good title to the estate, the subject matter of the contract of the 24th of April 1845, and if so, at what time the plaintiff showed a good title. The Master made his report on the 3rd of May 1849, whereby he reported that the plaintiffs could make a good title to the said estate, and that they showed a good title to the said estate on the 9th of January 1849. Ten exceptions have been taken to the Master's report by the defendant. The first exception has been given up by the defendant's Counsel, and is therefore, upon their consent, to be overruled. The second, third and fourth exceptions may be disposed of together. The second exception is, that it is stated in the charge of the plaintiffs that the hereditaments and premises are holden of the Crown under certain letters patent, dated the 19th of March, 15 Car. 1, to one Peter Benson, and his heirs, by which letters patent the said hereditaments and premises appear to be subject to two covenants on the part of the said Peter Benson, and his heirs and assigns, to which I shall hereafter particularly advert. The third exception is, that the letters patent contain another covenant, to which I shall also advert. The fourth exception is, that the letters patent contain certain provisoes and conditions of re-entry in the event of the breach of the covenants in the second exception mentioned. In the printed rental and particulars of sale, under which the estate was sold, it is represented to be a fee-simple property. The lands in question were granted by King Charles the First to Peter Benson, and his heirs and assigns, by letters patent, duly enrolled, bearing date the 19th of March, in the fifteenth year of his reign. By those letters patent King Charles the First, for the consider 1849. Rolls. STEWART MARQUIS OF Judgment. 1849. Rolls. STEWART v. MARQUIS OF CONYNGHAM. Judgment. ations therein mentioned, granted to the said Peter Benson, his heirs and assigns, certain lands therein particularly described (which it is admitted include the lands in question), Habendum to the said Peter Benson, his heirs and assigns for ever, paying annually the sum of £21. 17s. 6d. The letters patent, after some provisions upon which no question has been raised, contain a covenant by Peter Benson for himself, his heirs, executors, administrators and assigns, with King Charles, his heirs and successors, that he the said Peter Benson, his heirs and assigns, within the space of two years next following after the date of the said letters patent, should constitute, place and have three free tenants of English or British race, blood or name, in and upon the premises before granted, each of whom should have to himself a demise or grant of at least fifty acres of land, meadow and pasture, English standard measure, parcel of the premises aforesaid; or in place of two of the said three tenants, should constitute and place one free tenant of English or British race, blood or name, who should have one hundred acres of land, &c., parcel of said premises; and that the said tenants, respectively, should have an estate at least for the term of one life; and the letters patent then contain a provision, which appears, from the copy sent to me, to be partly defaced, but which appears to amount to this, that upon the determination of the interest of any such tenant or tenants, another tenant or tenants of English or British blood, race or name, should, from time to time for ever, be constituted and placed in like manner by the said Peter Benson, his heirs and assigns. The said Peter Benson, for himself, his heirs and assigns, further covenanted that he, his heirs and assigns respectively, from time to time should prepare and have in readiness, in and upon the premises before mentioned, or any parcel thereof, "eight cullivers, or muskets, and a proper number of arms to arm or accoutre eight pikemen for the defence or safety of the said Peter Benson, his heirs and assigns, and their tenants, against rebels and other enemies of us, our heirs and successors, in our said Kingdom of Ireland." The letters patent then, after giving authority to Peter Benson, his heirs and assigns, to let certain parts of the lands to the mere |