Rent, which accrued partly during the lifetime of William Mulloy, and partly after his death, being in arrear, Master Litton on the 17th of December 1846 made an order in the matter of Goffs minors directing that an ejectment for non-payment of rent should be brought in the names of the trustees of the will of Thomas Goff. Upon that ejectment (a copy of which was served as well upon the mortgagees Cockburne, as upon the defendant Coote Mulloy and other persons), the lessors of the plaintiff obtained by consent judgment as of Hilary Term (March 29) 1847. An habere issued upon that judgment, and the Sheriff delivered possession on the 28th of May 1849; upon the same day the premises were by indenture demised by the lessors of the plaintiff to Mr. George French (a near relative of the defendant, and who had proved a demand as a specialty creditor of William Mulloy in the cause of Cockburne v. Mulloy), for the term of six months pending redemption. Those six months (during which the defendant Coote Mulloy in fact occupied the lands) expired upon the 28th of November 1847 without any redemption by the plaintiff Coote Mulloy; but as the mortgagees Cockburne had a further period of three months within which they might redeem, the forfeiture would not have become absolute until the 28th of February 1848. On the 17th of February 1848, the Master of the Rolls made an order in Cockburne v. Mulloy extending the receiver in that cause over the premises in question, and giving him liberty to borrow money for the purpose of redeeming the lands, and to apply the rents of those and the other mortgaged premises to that purpose. On the 23rd of February 1848, Frances Mulloy, the last remaining cestui que vie in the lease of 1798, died. On the 26th of February 1848, application was made on behalf of the mortgagees to the Master, in the matter of Goffs minors, to enlarge the time for redemption of the lands; the solicitor for the defendant and his guardian then attended. It was proposed on the part of the mortgagees that a bill of exchange, drawn by the plaintiff Coote Mulloy upon and accepted by Mr. George French for £1565. 10s. 8d., being the amount of arrear of rent then due, and of a further gale up to the 1st of May 1847, and another bill drawn 1850. Chancery. MULLOY v. GOFF. Statement. 1850. Chancery. MULLOY บ. GOFF. Statement. and accepted by the same persons for £100 to cover the costs incurred in the ejectment and other proceedings relating thereto, should be received as security for payment of the rent and costs within three months from that time. The Master expressed his approbation of the arrangement, and adjourned the proceedings until the 28th of February (being the last day of the period of nine months within which the mortgagees might redeem), for the purpose of procuring the acceptances from Mr. French, who was then absent. On the 28th of February the application was renewed on behalf of the mortgagees. The solicitor for the defendant and his guardian objected to be a consenting party to the proposed arrangement, and produced to the Master a note of the opinion of Counsel advising the solicitor of defendant that the Master had not jurisdiction to extend the time for redemption or to accept the bills as security for payment of the rent and costs; but the Master, being of the contrary opinion, made the following order :— Attendance for minors "1848, February 28th: Goffs minors. and guardians and receiver, and plaintiffs Cockburne, and receiver in Cockburne v. Molloy, and receiver in Goffs minors. Mr. George French, a creditor and trustee, under order of the 17th February 1848 in Cockburne v. Mulloy, having accepted a bill for £1565. 10s. 8d. at three months after date, and all parties admitting that the bill is good, receive it on part of the minors as payment of the rent, for which habere executed and a further half year; if bills not paid, forfeiture to be complete; and the bill for £100 having been also accepted by him, let this bill lie in the hands of Babington to pay the costs of ejectment proceedings and this meeting and the meeting of Saturday; and all parties agreeing that the estate had been saved by these acceptances, declare Mr. French entitled to all the rights which can be conferred on him by the order aforesaid, or as salvage creditor otherwise, and let a report be prepared at minors' expense." Those bills, which were drawn and indorsed by the plaintiff and accepted by Mr. George French, were handed to Mr. Babington, the solicitor for the defendant, who retained them accordingly. The plaintiff remained in undisturbed possession of the lands during the currency of the bills which, upon arriving at maturity, were not paid and were duly protested. The defendant having refused to deliver up possession of the lands, the Master directed an ejectment on the title to be brought. In Michaelmas 1848 that ejectment was brought in the Court of Common Pleas, and served upon the plaintiff, the mortgagees and several other persons. The present plaintiff, Coote Mulloy, only took defence. Upon the trial at the Roscommon Spring Assizes 1849 his Counsel called on the Judge to direct a verdict in his favour, on the ground that the forfeiture was waived by acceptance of the bills, which the learned Judge refused to do, but saved the point for the Court above, and left as a question for the jury, whether 'the bills were taken subject to the condition, and whether they were unpaid? and if so, he told them to find for the plaintiff in the ejectment, otherwise for the defendant (the present plaintiff). Counsel also called for a nonsuit as no demand of possession was proved; but this request was also refused. The jury found a verdict for the plaintiff in the ejectment. Upon the 16th of March 1849 a sum more than sufficient to cover the amount of the rent and costs was tendered on behalf of the plaintiff to the solicitor for the defendant and his guardian, but was refused. Subsequently, in Easter Term 1849, the Court of Common Pleas refused to disturb the verdict. The case will be found reported as Lessee Goff v. Mulloy (a). Upon the 26th of April 1849 the plaintiff filed his bill in the present suit, praying that the defendant should be decreed to execute a renewal to the plaintiff pursuant to the covenant in the lease of 1798 and that, if necessary, plaintiff should be decreed entitled to redemption of the premises comprised in that lease on payment of all rent and costs, and that, notwithstanding the ejectment and habere, the lease should be declared a subsisting interest, and that the defendant should be restrained from taking out execution on foot of the judgment in ejectment. (a) 12 Ir. Law Rep. 95. * While the jury were deliberating upon their verdict an offer of the amount of the rent and costs was refused by the attorney for the lessors of the plaintiff. 1850. Chancery, MULLOY V. GOFF. Statement. 1850. Chancery. MULLOY V. GOFF. Statement. Argument. The defendant, in the name of his guardian, had, by leave of the Master, filed a bill, on the 12th of June 1848, against Coote Mulloy the plaintiff and Mr. George French, alleging that Mulloy had, during the currency of the bills, been committing waste both on the house and lands of Oakport, and praying for an injunction and account of waste. Upon the 13th of June 1848 the common injunction, until answer, was granted. The defendant in the present suit, amongst the other grounds which appear in argument, relied upon the waste as disentitling the plaintiff to the relief sought by his bill. The evidence as to ownership of the trees and as to the nature and extent of the waste was of a conflicting character. There was also evidence given which showed that the mansion upon the lands had fallen into a state of disrepair. Mr. Serjeant O'Brien, Mr. Carleton and Mr. J. M'Mahon, for the plaintiff. A litigious defence by the plaintiff to the ejectment, waste, and forfeiture by non-redemption within the time prescribed by the statutes, have been relied on by the defendant as disentitling the plaintiff to the relief prayed. But a litigious resistance on the part of the tenant is no answer to a bill for redemption: Newenham v. Mahon (a); Fitzgerald v. Hussey (b); Wallace v. Patten (c): nor that he has committed breaches of covenant: Swanton v. Biggs (d). Nor are mere delay and non-payment of rent sufficient grounds for refusing a renewal: M'Donnell v. Burnett (e); Trant v. Dwyer (f); Kent v. Roberts (g); Fitzgerald v. O'Connell (h): nor waste: Flood v. George (i); Kennan v. White (k). There was not here any continued resistance of payment of rent, and the evidence for the plaintiff shows that the trees cut down were his property, and that nothing which can fairly be called waste has taken place. As to the alleged forfeiture. The objection as to non-payment (a) 3 Ir. Eq. Rep. 304. (c) 1 Ir. Eq. Rep. 338. (e) 4 Ir. Eq. Rep. 216. (g) 3 Ir. Eq. Rep. 279. (i) Lyne on Renewals, Appx. cx. (b) 3 Ir. Eq. Rep. 319. (d) Beatty, 170. (f) 2 Bli. N. S. 11. (h) 6 Ir. Eq. Rep. 455. (k) Ibid. cxix. within the time limited for redemption may be waived: Devereux 1850. Chancery. MULLOY V. GOFF. Argument. |