1851. Chancery.

FENNELLY v.

Judgment.

his right, title and interest in and to said lease, and the premises thereby demised, upon clear title being made out to him, for the sum of £1250;" and that it appeared that several judgments had been ANDERSON. confessed and remained unsatisfied by the vendor, in consequeuce whereof and until same were satisfied or paid off, a clear title could not be made to the vendee: it was witnessed that the vendee should cause the judgments, and any other incumbrances that might affect the premises, to be satisfied "so as that the vendee should have a clear and marketable title thereto." And in a subsequent part of the agreement the vendor covenanted with the vendee, "to make out a clear title to the premises, free and discharged from all incumbrances whatsoever." Sir Edward Sugden there said:"Upon the part of the vendor it is contended that the contract was for a sale of the interest in the lease in question, whatever it might be, and that the parties, when speaking in their contract of a good title being made out, only meant that it should be free from incumbrances. But whatever ambiguity there may be in the first part of the contract there is none in the latter part; for there is an express agreement that the seller shall make out a good and marketable title, free from incumbrances, no doubt; but these words were emphatically introduced, because it was anticipated that delay in completing the sale would arise from paying off the incumbrances. Therefore the contract was not only that a good title should be made out, but also that it should be free from incumbrances. I think it clear upon this contract that the seller was bound to make out a good title." Now I do not think that was even so strong a case against the vendor as the present, because here the contract is to convey, not the title to the lease, but the lands and premises, and contemplates the conversion of the vendor's interest into a fee-farm grant procurable under the statute.

Undoubtedly there are cases which show that if the party mean to sell such interest only as he may happen to have, the contract may be so limited. It is unnecessary that I should now go through those authorities, as I have recently stated my opinion upon them in the case of Leathem v. Allen (a), to which I still adhere. By (a) Supra, 683.

merely using the words "all their interest in the said lands," I do not think the vendors have guarded themselves against the production of their lessor's title.-[His Lordship here referred to the broad manner in which the general rule that the vendor of a leasehold must show his title, as laid down by Richards, C. B., in Purvis v. Rayer (a), and to the observations of Rolfe, B., in Sellick v. Trevor (b).]—I have no hesitation in holding that the petitioners have not, by the terms of their contract, protected themselves from the operation of the general rule; and that they must show that the original lease is a valid instrument, conveying a good title to an estate for lives renewable for ever. I cannot make any declaration limiting the title, which they are bound to make out.

There is nothing in the case warranting me in saying that there was a waiver of the production of title. The very first question put by Counsel for the respondent was, whether and when the lease was registered?-a very pertinent question; if registered at one time the lease might be good, and vice versâ.

Mr. Serjeant O'Brien asked his Lordship that a letter of the 26th of November 1850 should be especially referred to the Master's consideration.

The LORD CHANCELLOR.

I shall neither reserve any question with respect to that letter, nor shall I refer it specially to the Master, although under the general reference as to title, which I now direct, I think that it will be open for him to consider it.

1851. Chancery.

FENNELLY v.

ANDERSON.

Judgment.

(a) 9 Price, 488, 525.

(b) 11 M. & W. 722, 729.

NOTE.-Vide the two preceding cases.

1852. Chancery.

Jan. 22.

AGNEW v. CONNELL.

Where in a MR. M'FARLAND moved for a summary order of reference upon the cause petition

presented by a cause petition in this case, which sought the administration of the legatee for the administration real and personal estate of the late Charles Connell of Belfast, and

of the real and personal estate of the

testator, no

person who had proved

the

payment of a legacy of £250 under his will, bequeathed to the petitioner. No person was made a respondent who had proved the will. [The LORD CHANCELLOR. I do not see that any personal the will was representative of the testator has been brought before the Court.]— As to that, the facts are these, as disclosed by the petition itself :but the petition stated Mr. Connell, by his will, named four persons as his executors; one that four ex

named as a

respondent,

:

ecutors had of them alone proved, and is now dead; the others acted as execubeen named in

the will, one of tors by executing deeds and otherwise, though they did not join whom alone in taking out probate, and they have been made respondents. proved it, and had since Under these circumstances it is submitted that probate to the one died, and the others, who enured to the others; that the latter sufficiently represent the

were named as respondents, had acted as

estate for the purposes of this suit, and could not now renounce :

executors, al- Cummins v. Cummins (a).

though they had not joined in taking probate. Held, that the case

was a proper

one for a sum

The LORD CHANCELLOR.

They could not.

You may take a summary order.

mary order under the 15th section of the Court of Chancery Regulation Act.

(a) 8 Ir. Eq. Rep. 723.

INDEX.