1849. Rolls.

BRABAZON
V.

LORD
LUCAN.

Judgment.

Ireland to allow such interest, I have made my calculation on the supposition that in the absence of express evidence of any local custom, interest ought to be paid upon fines for renewal of leases of the said lands and premises. And I accordingly find that there is due and owing to the respondent, the Earl of Lucan, by the petitioner, the sum of £717. 10s. 4d. for interest on said fines and fees for renewal." The Master then states that he has settled a draft deed of conveyance, having regard to the directions in the order of reference; and schedules are annexed to the report, showing how the sums are calculated.

To this report an exception has been taken by James O'Dowd, the surviving petitioner-"For that the Master has found that there is due and owing to the respondent George Charles Earl of Lucan, by the said petitioner, the sum of £717. 10s. 4d. for interest on the fines and fees for renewal in the report mentioned, whereas the Master ought not so to have found, because interest was not, nor is, payable upon the said renewal fines; nor was the said Master authorised by the order in the report mentioned to compute or allow interest upon the said renewal fines unless the said Master should find that interest had been customarily paid on such fines; and it appears by the report that there was not any evidence laid before the said Master to show or prove that interest had been customarily paid on such fines."

It appears from the schedule of evidence to the Master's report, that the renewal of the 18th of June 1832, from Richard Earl of Lucan to Sir William Brabazon, was in evidence before him. I presume his attention was not called to the contents of that document.

I am of opinion that it affords evidence that interest on renewal fines was customarily paid on the renewal of the original lease from Richard Earl of Lucan to Sir William Brabazon.

The renewal of the 18th of June 1832, which was between Richard Earl of Lucan of the first part, and Sir William Brabazon of the second part, recites a lease of the 1st of February 1820, whereby the said Earl of Lucan demised to Sir William Brabazon the lands and premises in question, habendum to Sir William

Brabazon, his executors, administrators and assigns, from the 25th of December 1818, for twenty years. It further recites that the lease of 1820 contained a toties quoties covenant for renewal by the said Earl of Lucan and his heirs, &c., and a covenant by Sir William Brabazon for himself and his executors, &c., to pay, for the purpose of obtaining said renewal or renewals from the see of Tuam to said Earl of Lucan, his heirs and assigns, whatever fine or fines the said Earl, his heirs or assigns, should pay for the said renewal or renewals to the said see of Tuam. The said renewal of the 18th of June 1832 further recited that the Earl of Lucan had obtained a renewal of his lease from the Archbishop of Tuam, but at an increased annual renewal fine; and that the said Sir William Brabazon had applied to the said Earl of Lucan to renew or grant him a new lease of said premises," to which the said Earl of Lucan had agreed, upon being paid all rent and arrears and said increased renewal fines and interest thereon, due by him the said Sir William Brabazon to the said Earl of Lucan, and which the said Sir William Brabazon had accordingly, previous to the execution of the said renewal, paid to the said Earl of Lucan." And said deed of renewal of the 18th of June 1832, after such recitals, witnessed that the Earl of Lucan demised to Sir W. Brabazon the said lands and premises, habendum for twenty years from the 23rd of December 1831; and amongst other covenants therein there is a toties quoties covenant by the Earl of Lucan; and Sir William Brabazon for himself and his executors, &c., thereby covenants to pay, for the purpose of obtaining said renewal or renewals from the said see, unto the said Earl of Lucan, his heirs, executors, &c., whatever fine or fines he the said Earl, his heirs, executors, &c., should pay for the said renewal or renewals to the said see of Tuam. There is of course no covenant to pay interest, because from the very nature of a toties quoties covenant the renewal is to take place as soon as the lease has been made to the immediate tenant by the see, and it is the duty of the inferior tenant, if he required that a renewal should be made to him, to pay the renewal fine or such portion as he may be liable to without any delay.

The 3 & 4 W. 4, c. 37, s. 128, authorises the tenants or lessees of

1849.

Rolls.

BRABAZON

V.

LORD

LUCAN.

Judgment.

1849. Rolls.

BRABAZON

V. LORD LUCAN.

Judgment.

the lands of Archbishops or Bishops, or other ecclesiastical corporations in Ireland, to purchase a perpetual estate or interest in the said lands on the terms, and subject to the provisions, in that and the subsequent sections mentioned.

By the 141st section of that statute it is enacted, that no tenant or lessee should be entitled to have any conveyance of the feesimple made or granted to him, of whose lease, if holding by lease for the term of twenty-one years, twenty years shall not be then to come and unexpired; or if holding by lease for forty years, whereof thirty-nine years shall not be then to come and unexpired; or if holding by lease for twenty-one years or three lives, or for three lives, all the lives named wherein shall not be then in being, unless he shall previous to the execution of such deed of conveyance pay all and every the renewal fines customarily paid or payable on or for the renewal of such lease; and also all arrears of rents. That section was amended in some particulars by the 4 & 5 W. 4, c. 90, s. 21, and it appears to me to be clear that the intention of the Legislature was, that where the immediate tenant to the see purchases the fee-simple he must, in order to obtain a conveyance of the fee, have either a fully renewed lease, or be entitled to a renewal by having paid the "renewal fines usually or customarily paid or payable on or for the renewal of such lease, and the sum which, according to the usual and accustomed mode of renewing the same, ought to be paid on the renewal thereof." The words I have last read are extracted from the 4 & 5 W. 4, c. 90, s. 21.

The 3 & 4 W. 4, c. 37, only authorised the immediate tenant to the see to purchase the fee and inheritance.

The 4 & 5 W. 4, c. 90, extended the provisions of the Act, and by the 30th section authorised sub-tenants to purchase the fee-simple from the see in case the immediate tenant to the see should not be desirous to purchase; and that section provides, that such purchase shall be upon such and the same terms and in the same manner as is prescribed for the purchase of perpetuities by the first or immediate tenant, and subject to the additional provisions applicable to such purchases. The third statute (the 6 & 7 W. 4, c. 99) is the Act applicable to the present case, and by the 35th section

thereof it is enacted, that the 3 & 4 W. 4, c. 37, 4 & 5 W. 4, c. 90, and the said Act of the 6 & 7 W. 4, c. 99, shall be construed and taken together as one Act to all intents and purposes.

The first section of the last Act authorises any inferior tenant holding any lands by virtue of a lease containing a toties quoties covenant for renewal, and where the next immediate landlord shall have acquired a perpetual estate and interest in such lands under the provisions of the said Acts, to apply to such next immediate landlord for a conveyance of a perpetual estate and interest in such lands, which the next immediate landlord is required to make and execute to such inferior tenant, provided that such tenant shall have previously paid or tendered to such landlord or his agent such sum as shall be payable by such tenant for the contribution to the purchasemoney paid or secured by such landlord, "together with all rent and fines and fees for renewal, and all arrears thereof then due and payable by such tenant by virtue of such lease or contract."

All these statutes, as I have already stated, are to be "construed and taken together as one Act;" and I am of opinion that no tenant is entitled to a conveyance of the fee under any of the three Acts, unless he has a fully renewed lease, or is entitled to a fully renewed lease.

On the part of Sir William Brabazon's representatives it has been contended that the Lord Chancellor has decided in this case that interest is not payable on the contribution to the purchasemoney, however long the payment of such contribution may have been delayed (a); and that the 1st section of the 6 & 7 W. 4, c. 99, entitles the inferior tenant to a conveyance of the fee on payment of the renewal fines without interest, no matter how long such payment may have been delayed.

In this case, the order of reference made by me on the 30th of June 1846 directed the Master to inquire and report, amongst other things, whether interest had been customarily paid on the renewal fines; and if so, that he should inquire and report what was due and payable for interest on such fines; and although the Lord Chancellor varied such order, so far as related to the interest

(a) 9 Ir. Eq. Rep. 540.

1849. Rolls.

BRABAZON

V.

LORD

LUCAN.

Judgment.

1849. Rolls.

BRABAZON v.

LORD

LUCAN.

Judgment.

on the contribution to the purchase-money, there was no alteration made therein as to the direction in relation to the interest on the renewal fines.

I am of opinion (construing the three Acts together), that under the first Act the immediate tenant to the see must have a fully renewed lease, or be entitled to a fully renewed lease, in order to obtain a conveyance of the fee. According to the settled course of practice, if there has been delay in taking out a renewal the fine payable is calculated so as to make the tenant pay interest for such delay.

If an inferior tenant was to file a bill for a renewal, claiming a right under a toties quoties covenant for renewal, having delayed for several years to pay the fines or proportion of fines which he was liable to pay, a Court of Equity always (so far as my experience goes) has required the inferior tenant to pay interest on the fines he has neglected to pay; and on those terms alone the Court would decree a renewal; and having regard to the terms of the toties quoties covenant in this case, it is clear in my opinion that Sir William Brabazon was to pay the entire fine; and no Court of Equity would have been justified in decreeing that he should be entitled to a renewal at the end of several years, unless on the terms of indemnifying Lord Lucan by paying interest on the fines. The statute ought to be construed having regard to the settled course of practice in Courts of Equity, previously to the passing of the Act; and nothing can be more unjust than what has been argued on the part of the petitioners that an inferior tenant may not only at the end of half a century or more compel the immediate tenant to the see to convey the fee to him on payment of what fifty years before would have been the contribution to the purchase-money, without one shilling of interest; but that if his lease is within a year of expiring, he is to be at liberty to pay the renewal fines which accrued due from year to year for thirty-nine years previously, if his lease was a forty years lease, or for twenty years previously, if his lease was a twenty-one years lease, without interest.

I should feel no difficulty at all upon the question, were it not that the Lord Chancellor has decided that interest is not payable on