36. If a lease merely contains a covenant for one or more renewals, or to renew from time to time during a limited period, it is incumbent on the tenant to observe(a) with strictness the terms of the covenant, as a Court of Equity will not relieve against the legal consequences of his negligence, unless a strict performance be prevented by the default or misconduct(b) of the landlord, or by ignorance(c), not wilful, or by unavoidable accident. Ignorance is considered wilful, where a person neglects the means of information which ordinary prudence would suggest, and accident is not unavoidable which reasonable diligence might have prevented: it is quite clear that ignorance(d) of a party's own rights, or of instruments in his possession or power, an ignorance to which the adverse party is in no way auxiliary, cannot excuse a nonperformance of any thing incumbent on that party to perform. A lease being granted for three lives, with a covenant to add a new life upon the death of the surviving cestuique vie, provided such additional life should be nominated by the tenant within twelve months after the decease of the first of the original cestuique vies which should happen; the additional life was not nominated(e) until upwards of two years after the death of the first of the cestuique vies: and upon a bill filed for a renewal of the lease, specific performance of the covenant was (a) Allen v. Hilton, 2 Fonb. Tr. 432; M'Alpine v. Swift, 1 Ball & B. 285. (b) Firman v. Ld. Ormond, Beatty, 347; Eaton v. Lyon, 3 Vesey, 690; Pritchard v. Ovey, 1 Jac. & W. 396. (c) Harries v. Bryant, 4 Russ. 89; Eaton v. Lyon, 3 Vesey, 690; and see the observations of Richards, C. B., in Maxwell v. Ward, 11 Price, 17; Walker v. Jeffreys, 1 Hare, 341. (d) Maxwell v. Ward, M'Clell. 464. (e) Firman v. Ld. Ormond, Beatty, 347; Statham v. Liverpool Docks' Company, 3 Y. & Jerv. 565; 1 Younge, 269. decreed, because it appeared that the delay in nominating the additional life, was occasioned in consequence of the landlord's agent having misinformed the tenant on the subject. Upon a rehearing it appeared that articles of agreement had been entered into in 1770, for a lease for three lives, to be named by the lessee, with liberty to nominate an additional life on the death of the surviving cestuique vie: the lessor died in 1776, leaving a daughter his heir, who was a lunatic(ƒ), and died in the year 1816: the lessee died in 1780, and his heir attained his full age in 1796: none of the cestuique vies had been nominated, and a bill was filed in 1816 for an injunction, and specific performance of the articles. The rent had been duly paid during the whole period, and Lord Manners decreed specific execution of the articles upon payment of the landlord's costs between attorney and client; and as it was to be supposed, if the articles had been immediately carried into effect, that the original lessee, Frances Morton, deceased, would have been named one of the cestuique vies, a lease was ordered to be executed only for two lives, who were in existence in 1776, with a life to be added on the death of the survivor. So Lord Kensington, having purchased lands subject to an agreement for a lease for three lives, which were not named, received the rent payable by the tenant, and though lives had not been nominated(g) by the tenant for a period of nine years, specific performance was decreed, as the neglect appeared to have proceeded from the mutual default of both parties. Although the construction of covenants is the same in equity as at law, the performance may differ(h) in one Court from what is required by the other. At law a covenant must be strictly and literally performed-in equity, it must be really and substantially performed, according to the true intent and meaning of the parties, as far as circumstances will permit. Under a lease for years determinable on lives, with a covenant of renewal (for ever)(i), provided the tenant should within a year after the fall of any cestuique vie give notice in writing of his intention to renew, Lord Chief Baron Richards held clearly, that if within the time limited by the covenant, a fair intimation of an intention to renew had been given in any way, the Court would have relieved the tenant against the omission to give notice in writing; but that the ignorance(j) of a lessee Moreton v. Vanston, in Chancery, 14th Dec. 1819. (g) Lord Kensington v. Philips, 5 Dow's Parl. Ca. 61; Pritchard v. Ovey, 1 Jac. & W. 396. (h) Eaton v. Lyon, 3 Vesey, 692. or assignee of the death of a cestuique vie, which might have been ascertained by ordinary diligence, would not excuse an omission to apply in due time for a renewal. The Irish Tenantry Act(k) does not embrace covenants for limited renewals, and the terms of such covenants must therefore be as strictly observed by Irish tenants, to entitle them to equitable relief, as would be required in England from tenants under similar circumstances. By a lease for thirty-one years, subject to a rent of £160, the lessor covenanted, at the end of the term, to grant a new lease to the lessee, his heirs and assigns, for three lives, provided the tenant should nominate such lives in writing, under hand and seal, during the last six months of the term for years, and not otherwise. The term having expired in November, 1805, and no lives being nominated until January, 1806, Lord Manners(7) dismissed a bill filed for specific performance of the covenant, holding that the nomination of lives in January, which should have been nominated in the preceding November, did not admit of compensation. By a lease for sixty-one years, the lessor covenanted within one year after the expiration of twenty years of said term, upon request of the lessee, and payment of a stipulated fine, to execute(m) another lease for a further term of twenty-one years, to commence on the expiration of the original term of sixty-one years, and so in like manner on the expiration of every twenty years during the said term, to execute another lease for a further term of twenty years, to commence from the expiration of the term previously granted. The tenant having neglected to claim a further term at the end of the first and second twenty years, it was decided he had no right to a further term, on the expiration of the last twenty years of the lease, as he should have taken the terms in succession, if he wished to have the advantage of the covenant to renew. 34. Where a tenant had imposed on his landlord the necessity of bringing twelve ejectments for non-payment of rent, in each of which the landlord had recovered his demand with full costs: upon a bill filed for specific performance of a covenant to add a life to the lease, the Exchequer declined interfering in favour of a tenant guilty of such misconduct. Garret Neville, by indenture dated the 12th of February, 1762, demised the lands of Kilbane, in the county of Limerick, to Robert (k) 19 & 20 Geo. III. c. 30, Irish. (m) Rubery v. Jervoise, 1 T. R. 229. Horan, for three lives, and for the life of one(n) other person, to be added pursuant to a covenant for renewal contained in the lease, and for the term of forty-two years and a half concurrently, at the yearly rent of £400 and it was thereby covenanted, that upon the death of any one of the lives named in the lease, which should first happen, and upon the nomination of any other person within six months after such death by the lessee, his heirs or assigns, in place of the person so first happening to die, the lessor should within six months, upon demand of the tenant, and upon payment of a peppercorn fine, and of all rent then due, add to the term of the lease the life of such person so nominated. Elias Horan died abroad in May or June, 1778, and being the first of the cestuique vies who died, and Denis O'Brien being entitled to a moiety of the lessee's interest in the premises, by notice in writing, dated the 15th of August, 1778, nominated the life of his son, Matthew O'Brien, and on the 29th of November, 1779, paid £1000, in full for all rent due under the lease to the 1st of May, 1778, being the galeday immediately preceding such nomination; and on the 1st of June, 1779, Denis O'Brien procured an assignment of the other moiety of the lessee's interest in the premises. The landlord accepted the nomination of the life, but never executed any renewal or new lease for the additional life so nominated. In May, 1804, the landlord, Garret Neville, brought his ejectment on the title, alleging that all the cestuique vies named in the original lease were dead; and on the 26th January, 1805, Denis O'Brien exhibited his bill in the Exchequer for specific execution of the covenant of renewal for the life of Matthew O'Brien, stating that such additional life had been nominated in due time, and had been accepted by the landlord, and that all rent was paid which was due at the time of such nomination. On the 25th of February, 1805, Garret Neville answered, admitting that the life of Matthew O'Brien had been nominated in due time, and stating that on the 29th of November, 1779, when the tenant's interest was within a day or two of being evicted for non-payment of rent, Denis O'Brien paid a sum of £1000, by which all rent due at the time of nominating the additional life was discharged, but leaving half-a-year's rent in arrear when such payment was made, although payment of such further halfyear's rent was then demanded. The defendant Neville, by his answer, also admitted he had accepted the nomination of such additional life of Matthew O'Brien, and had declared his willingness to renew, provided all rent was paid; but insisted he ought not to be compelled to execute (n) O'Brien v. Neville, Eq. Excheq. any renewal, because the tenant had obliged him to bring twelve several ejectments, in order to enforce payment of his rent, in each of which he, the landlord, had obtained judgement; and that the rent never was discharged, until after execution executed, and until the time allowed by law to redeem had nearly expired. Upon these facts the bill was dismissed, the Court being of opinion that a tenant guilty of such gross misconduct in keeping back his rent, was not entitled to any assistance in equity. 38. The favour shewn by landlords to old tenants(o), in granting them renewals in preference to strangers, has conferred on such tenants an interest beyond their subsisting terms, which is usually styled their "tenant-right of renewal." This practice has prevailed particularly in leases by the Crown, by corporate bodies, or by ecclesiastical persons, so that there frequently occur many successive renewals of such leases, or successive enlargements of the term by reversionary grants. The renewal is merely matter of favour, but is so far valuable as often to be made the subject of mortgages, and of family settlements, and such claim, or chance of renewal, is recognized and protected by Courts of Equity. Whenever a renewal is obtained by persons who have no beneficial interest in the old lease, but are connected with the property in a fiduciary character, as guardians, trustees, or executors, or where the persons procuring renewals have partial or limited interests in the old leases as tenants for life, mortgagees or mortgagors, a Court of Equity, presuming that the new lease was obtained by means of the connexion with, or reference to the interest in the old lease, will attach a trust upon such new or reversionary grant, and declare that the renewal shall be deemed a graft on, or continuation of the old lease, and that the parties renewing shall hold as trustees for those who are beneficially interested in the former lease, either wholly or in part, according to circumstances. 39. Courts of Equity interfere to support the tenant-right, where trustees(p), guardians(q), executors, partners in trade(r), agents(s), or (0) See Butler's note, 249, to Co. Litt. 290, B. s. 9; Lee v. Ld. Vernon, 5 Bro. Parl. Ca. 10-14; Bac. Abr. Leases (U). (p) Keech v. Sandford, or the Rumford Market case, Sel. Ca. in Chan. 61; 2 Eq. Ca. Abr. 741, S. C.; Parker v. Brooke, 9 Vesey, 583; Fitzgibbon v. Scanlan, 1 Dow's Parl. Ca. 261. (q) Rawe v. Chichester, 2 Amb. 715; 2 Dick. 480; 1 Bro. Ch. Ca. 198, note; (s) Mulvany v. Dillon, 1 Ball & B. 409-418. |