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Clontarf Lease Dispute |
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Vernon Document No. 1 [Original document dated 24 June 1800] COPY CASE Of John Vernon Esq[ui]re and copy Opinion of William Saurin Esq[uire] thereon [Copied by] M. Franks & Son [October 1860] [With note signed M.F.]: “We have the original of this Case & Opinion October 1860” CASE 1750: John Vernon formerly of Clontarf in the County of Dublin Esq. was seized in fee simple of the Manor Castle & lands of Clontarff (sic), and being so seized He duly made & published his last will of this date whereby he demised his said Estate to his eldest son George Vernon Esq – for his life with Rem[ittance] to his first and other sons in Tail Male And by said will he gave to his said son a power To demise and set all or any part of his said Estate for 71 y[ea]rs or for 3 lives – The said Geo[rge] Vernon upon the decease of the said John Vernon his father which happened many years ago became seized of said Estate under the said will and continued so seized until the time of his death – The said Geo[rge] Vernon married and had issue John Vernon Esq His eldest son (whose case this is) and other children – 26 Oct[ober] 1778 By lease of this date the said Geo[rge] Vernon demised to W[illia]m Gleadowe Newcomen Esq (now Sir W[illia]m Gleadowe Newcomen Bart) a certain part Of said lands of Clontarff TO HOLD for a Term of 3 lives therein named And for the lives and life of the surv[ivors] and
surv[ivors] of them and if said 3 lives should all happen to die before the end and expiration of the Term of 71 years to be computed from the 29th day of September last Then and in that Case TO HOLD for and during as much of the said Term of 71 years to be computed from the said 29th day of September then last as should be and remain unexpired and undetermined at the time of the death of the last survivor of the before named 3 lives –
And in the said Lease is Cont[aine]d a Covenant in the words
following to with “AND the said Geo[rge] Vernon doth hereby for himself his heirs and assigns Covenant promise and agree to and with the said W[illia]m Gleadowe Newcomen his heirs Ex[ecutors] ad[ministrators] and ass[igns] in Manner following that is to say That if the said Wm G. Newcomen his heirs Ex[ecutors] ad[ministrators] or ass[igns] shall during this demise Inclose the lands adjoining the said Dwelling House from the High Road leading to Ratheny with a Lime and Stone Wall and paying the Rents and performing the Covenants and Agreements aforesaid on his and their part to be paid done and performed, and if it shall happen that the s[ai]d Wm. G. Newcomen his heirs Ex[ecutors] ad[ministrators] or ass[igns] shall obtain a Re[newa]l of any other or further Grant or demise from the T. Hon[ourab]le Tho[ma]s Earl of Howth his heirs or ass[igns] of the Mansion House and lands of Killester now in the poss[essio]n of the said Wm. G. Newcomen then and in that case the said Geo[rge] Vernon his heirs & ass[igns] shall and will at the present reserved yearly Rent Covenants and agreements afores[ai]d and at the proper Costs and charges of the said Wm. G. Newcomen his heirs Ex[ecutors] ad[ministrators] and ass[igns] and on his and their paying off all Rent, arrears of Rent and Taxes that shall be then due and in arrear, Renew the said hereby demised premises unto the said Wm. Wm G. Newcomen his heirs Ex[ecutors] ad[ministrators] or ass[igns] for such Term and time as shall be so granted to the said Wm. G. Newcomen heirs Ex[ecutors] ad[ministrators] or ass[igns] of the said Mansion House and lands of
Killester, not exceeding in the whole the term of 91 years” see said Lease I have rend[ere]d The Cestin que Vies named in the said lease or some of them are still in being – The said John Vernon the eldest son of the said George Vernon obtained his age of 21 years in the year 17 [year not completed] 3 Nov[ember] 1779: An indented deed of this date was entered into made between the said George Vernon and John Vernon his eldest son and heir apparent of the 1st part Francis Hutchinson of the City of Dublin Doctor of Physic of the 2nd part And Andrew Crawford of the City of Dublin Esq of the 3rd part whereby it was agreed that a Recovery should be suffered of said Manor castle and lands of Clontarffe etc. As of the then present Mich[aelmas] Term or some subsequent Term. And which Recovery when suffered it is hereby declared should enure to the uses following- TO the use of said George Vernon and his ass[igns] for the Term of his life without impeachment of Waste Ren[ewed] to said Francis Hutchinson his Exe[cutors] etc for a Term of 500 years upon the trusts thereinafter men[tioned] and from and after the determination of said Term then to the use and behoof of the said John Vernon his Heirs and Assigns for ever There is not any Leasing power given to said George Vernon by this Deed Michaelmas Term 1779: A Common Recovery was accordingly suffered of the said Manor Castle and lands pursuant to said deed 15 & 16 September 1780: Deeds of Lease and Release of these dates were made and entered into upon the marriage of the said John Vernon with Elizabeth Fletcher Spinster whereby the said George Vernon and John Vernon did convey the said manor Castle and lands to certain trustees therein named and their Heirs To the use of the said Geo Vernon for life (subject to a present maintenance for said John Vernon Rem[itted] to s[aid] John Vernon for life. Rem[itted] to the first and other sons of said John Vernon in Tail Male Rem[itted] to Geo Vernon Esq (second son of s[ai]d George Vernon the elder) for life, Rem[itted] to his first and other sons in Tail Male with Rem[ittance] to said George Vernon the elder and his heirs for ever By s[ai]d Deed a power is given to s[ai]d George Vernon the elder during his life & to the s[ai]d John Vernon and George Vernon the younger as they sh[oul]d res[pectively] become seized to demise s[ai]d Manor Castle & lands for any term not Exceeding 3 lives or for any No. of yrs not exceeding 91 yrs
in possession & not in Reversion Remainder of Expectancy at the best improved yearly Rent without fine etc. THE said Wm Gleadowe Newcomen has inclosed the Premises described in the Lease to him with such wall as in the lease made to him by the sd. George Vernon the elder mentioned THE said George Vernon the elder died many years since, and upon his decease the said John Vernon became entitled to and has ever since been in possession of the said Estate – THE said Sir Wm G. Newcomen did not obtain any Renewal of the Mansion House or lands of Killester during the life of the said George Vernon the elder
– 26 June
1794 BY lease of this date the said Thos Earl of Howth did demise to the said Wm. G. Newcomen the said Mansion House and lands of Killester for a Term of 91 years from
the 1st May 1794 THE above New Lease obtained by Sir Wm G. Newcomen was not obtained until near 16 years after the Execution of the Lease granted by the said George Vernon to him THE said John Vernon has issue by the said Elizabeth Fletcher his wife both sons and Daughters - THE said Sir Wm. Gleadowe Newcomen has applied to the said John Vernon to execute to him a Renewal or New Lease of the premises demised by the said George Vernon to the said Wm Gleadowe Newcomen. And Sir Wm. Gleadowe Newcomen asserts that he is under the Covenant contained in the Lease made by said Geo Vernon entitled to such Renewal from the said John Vernon, and that he has a right to have such Renewal for a Term of 91 years from May 1794 being the Term wh[ich] he has obtained of the Mansion House and lands of Killester from Lord Howth. THE said John Vernon apprehends that his father at the time of making said Lease of October 1778 being only Tenant for life of s[ai]d Estate with power to make Leases for 71 years or 3 lives only. Had not a right to enter into such Covenant for Ren[ewa]l or extension of the Term thereby demised as in said Lease contained, and that he the said John Vernon is not bound thereby, and that being himself now only Tenant for life with a Leasing power for 91 years or 3 lives to commence in poss[essio]n and not in reversion at the best improved Rent he has not unless he was bound by that Covenant the power to add any further Term to the number of years granted by the Lease made to the said Sir Wm. Gleadowe Newcomen or to set it at the present Rent, as granting such further term must he apprehends be Considered as a lease in reversion (there being a Lease at present exiting and Registered). And that the present Rent is not the best improved Rent which could now be Reasonably had for the premises. And that even Supposing he is bound by the Covenant in the Lease of 1778 to Renew the said Lease yet that he is not under the meaning of that Covenant bound to Grant any further Term than 91 years from the Commencement of that Lease viz – from the 29th Sept[ember] 1778, and not for 91 years from the commencement of Lord Howth’s Lease at May 1794 as contended for by Sir Wm Gleadowe Newcomen. The Covenant being that the said Geo Vernon his heirs etc shall Renew the said thereby demised premises for such Term as should be granted by Lord Howth not exceeding in the whole the Term of 91 years, which words in the whole it is Contended by Mr. Vernon must mean in the whole from the Commencement of that Lease, or that o[ther]wise these words w[oul]d be Nigatory. For if it was intended That the Renewal to be granted should be of an equal term with such renewal as should be obt[ained] from Lord Howth not exceeding 91 years, such intention could have been expressed without these words. And that in order to give them effect, they must mean in the whole from
the Commencement of the Lease in 1778. And that if the Construction contended for by Sir Wm G. Newcomen was to prevail, it w[oul]d amount to this, that if a Ren[ewa]l had not been obtained from Lord Howth for several years to come and then was got for 91 years or more He (Sir Wm G. Newcomen) would then be entitled to a Renewal from Mr. Vernon for 91 y[ea]rs from that time wh[ich] could not be the intent of the Covenant.
AND it is the more remarkable that these words “Not Exceeding in the whole the Term of 91 years” were inserted in The Leases to shew the intent in that respect the more strongly At the time after the Leases were Engrossed and at the time of the Execution, for they appear to be interlined in both parts of the Lease – You are requested to advise the said John Vernon as to the following points: Query: Had the said George Vernon at the time of the Exe[cuti]on of the Lease in 1778 a power to enter into such Covenant for Ren[ewa]l of the same as [it] is in said Lease contained, or has any force or effect been given to that Covenant by the said Recovery suffered by the said Geo Vernon & John Vernon or o[ther]wise and is the said John Vernon now bound by the said Covenant and obliged to fulfil the same -
COPY COUNSEL’S OPINION I am of opinion that the Covenant of Geo Vernon was utterly Inoperative against the Remainder [?than] Mr. John Vernon and even as to Himself was for a greater term than he had a power of granting neither did that Covenant Acquire any Validity from the Recovery which was suffered by Mr. G. Vernon & Son – Query - If the said John Vernon is not bound by the said Covenant has he now any power to grant such Renewal as is now required to be Executed by him in purs[uance] thereof, and w[oul]d such Renewal if executed by him be valid as against his son who is now a minor and next in Remainder to the said Estate under the settlement of 1780. Mr. John Vernon is neither bound by the Covenant nor has he the power to fulfil it, and could make no valid Lease but at the imposed value. But that he might do if he thought fit, the present Lease being surrendered, but he [sentence not completed] Query - Supposing that the said John Vernon is bound by the said Covenant has Sir Wm. Gleadowe Newcomen a Right to call upon him now to Execute the Renewal. The Term granted by the Lease is for 3 lives (some of whom are in Being) and the demise for the Term of years is only Eventual, in Case of the lives dying within it, which for aught that appears may not happen. Could not make any Lease in addition to Or in reversion Expectant on Sir William’s present lease Query – If said John Vernon is bound by the Covenant what term is he obliged to Renew for & from what time to Commence or be reckoned. And as the Covenant is, That the Lease shall be renewed for such Term as shall be granted by Lord Howth (not exceeding in the whole the Term of 91 years). And as the Term granted by Lord
Howth is for 91 years only, without any levies will Mr. Vernon be obliged to insert the surviving Cestin que vies
in the Lease of 1778 in such Renewal along with the Term for years to be thereby demised – All that could be required if the Covenant were binding, or if Mr. Vernon thought fit to do as much as his power would enable him to do, all that he could do would be on a Surrender of the present Lease to make a New Lease to Sir W. N. for a term commensurate to that he has acquired in the House at Killester viz 91 years from May 1794, and that must be at the improved Value – Wm. Saurin 24 June 1800 Stephens Green The Original Documents may be inspected at Dublin City Archives, 138-144 Pearse Street, Dublin 2.
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