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a party taking the estate. He limits the time for residence in the house to six months in every year, which seems to get rid of Lord Eldon's difficulty as to the person being a member of Parliament, there being no definite period for residing specified in the case before him. But it would appear further, that the person who drew this will had that case of Fillingham v. Bromley (a) in view, because there is an express provision here for the party being a member of Parliament, in which case he is excused by residing in the house three months, and by occasional residence during the sitting of Parliament, and keeping up an establishment there, which, it is provided, shall be equivalent to a six months residence. What can that mean, except the personal residence at the house of the party in question in the vacations or other intervals of his parliamentary duty? The distinction is between residence, and keeping up an establishment coupled with days of occasional residence, which may be taken into calculation in making up the three months during the period of his being called to attend at the sittings of Parliament. I am of opinion, therefore, if I regard the object of keeping the house in good condition, or the other necessary duties of a landlord, which may reasonably be considered to have been in the testator's mind, he must have contemplated (except in the case of a member of Parliament,) a personal residence at the house for a period of six months, between January in one year and January in the next. Then it is said, that the first clause throws considerable light upon the whole provision. That is a general clause, without any condition of forfeiture, that every person, not making any distinction as to age, coming into possession of the house at Decker Hill, "do reside or keep up a suitable establishment at Decker Hill aforesaid, so as to keep the said house clean, neat, and well aired; and

VOL. I.

(a) T. & R. 530.
QQ

E. K. W.

1854.

WALCOT

v.

BOTFIELD.

Judgment.

1854.

WALCOT

v.

BOTFIELD.

Judgment.

also do and shall keep the gardens and pleasure-grounds, and farm belonging to the said house, neat, and in good condition," to the satisfaction of the trustees of the will; and in default, the trustees out of the rents are to do or cause to be done all such matters as shall be left undone. It was argued, that this was the key to the whole proviso, and that the main object of the will was to keep the place in good condition; and that the party had the option of residing, or keeping it up without residence; and that the subsequent conditions were to be read with reference to that, and as long as one of the alternatives was fulfilled, the whole limitation would be satisfied. But it seems to

me, that there is a wide distinction between that first clause and the subsequent clauses imposing forfeiture for a breach of their provisions. First of all, there is a general proviso, that every one entitled to the property, including infants as well as adults, must either reside or keep it up. The second clause provides, "that the said Beriah Botfield or his sons or daughters, or any other such person as aforesaid, taking in remainder after him, who shall for the time being come into possession and beneficial enjoyment of my said mansion house at Decker Hill, by virtue of or under the trusts of this my will, and who shall be of full age, shall reside" for six months in the year; and in default there is a clause of penalty and forfeiture. The ground of the distinction is clear. The owner, if an infant, might be absent at school, or the like, and then the house being kept in proper order would answer every purpose; but when he is of full age, and competent to perform the duties of a landlord, then he is required personally to reside at the house.

Observations were made upon external circumstances, as tending to aid the construction. It was said, that the testator knew, at the time of making these limitations, that this gentleman had another large property, upon which it would be more agreeable to him to reside, and

that it would be very inconvenient to him to keep up the two establishments; and that he also knew that this gentleman had, at the date of this will, extensive iron and coal works, in which he was engaged, at some distance. Some of these, however, seem to be only about five miles distant from this house. But I do not think it very material to enter into these considerations, because the fact of the testator's knowing how this gentleman was situated, cannot alter the effect of words, so clearly expressed as in this will. On the contrary, I should rather have expected, that, if the testator had any intention of exempting this gentleman from the performance of this condition, he would have taken care to have used words clearly rendering it unnecessary for him to be personally present at Decker Hill. Instead of which, the whole will appears to me to be carefully penned, so as to tie down the devisee, when of full age, to a personal residence at this house during a certain period in each year. Of course, therefore, the mode in which he has actually been living there during the past year, has not complied with the condition, and, as the year has elapsed, the question is now ripe for decision.

Declare, that, according to the true intent and meaning of the will of the testator, the personal residence of Beriah Botfield, or of his sons or daughters, or any other person taking in remainder after him, who should come into the possession and beneficial enjoyment of the mansion house at Decker Hill, by virtue of the trusts of the will, and should be of full age, is required at the said mansion house. for the period of six months, between the 1st of January in one year and the 1st of January in the ensuing year, during every year of such possession, subject to the proviso in the will contained, which refers to the said Beriah Botfield or any other such person as aforesaid being a member of Parliament. And it appearing by the evidence that the said Beriah Botfield was not present at Decker

1854.

WALCOT

v.

BOTFIELD.

Judgment.

Minute of

Decree.

1854.

WALCOT

v.

BOTFIELD.

Judgment.

Hill during a period of 168 days between the 1st of January, 1852, and the 1st of January, 1853, declare, that the Plaintiffs, the trustees of the will, ought to retain out of the rents and profits of the estates the sum of 1000l., to be applied by them at their discretion, in building, draining, or other permanent improvements on the estates.

Mr. Wickens asked whether it was necessary to spend the night of a day of residence at the house.

The VICE-CHANCELLOR said, that he thought that was not necessary; but that, if the owner were personally present at the house for any part of one day, that would be a sufficient residence for that day.

April 25th.

Specific PerformanceLeaseholds

Covenants

Notice.

If a lessee

for a term of years under

let for a less

DARLINGTON v. HAMILTON.

JOHN DARLINGTON, the Plaintiff in this suit, on

the 14th of July, 1853, caused a certain messuage and the appurtenances to be put up for sale by public auction at the City Auction Mart, pursuant to printed particulars and conditions of sale previously advertised and pub

term, and the underlessee sell by auction the lesser term describing it as a lease, and one of the conditions of sale is, that the lessor's title shall not be inquired into; the vendor's title being good:Quare, whether the purchaser can refuse to complete because there is a term interposed between the vendor's interest and the freehold.

But, in such a case, where the property was included in the original lease, together with other hereditaments, subject to general covenants, and a power of re-entry for breach of any of them, and the purchaser had discovered these facts aliunde:-Held, that he was entitled to refuse to perform his contract, notwithstanding that the original lease contained provisions for the apportionment of the rent, and of the power of re-entry.

It is a formidable objection to the title of a vendor of leasehold property, that he has underlet it by a lease, which does not contain similar covenants to those by which he is bound to his own lessor, for example, covenants to build, or to paint at certain periods; for the vendor may thus have put it out of his power, during the underlease, to perform covenants for the breach of which the original lessor can re-enter.

Quare, whether the doctrine, that a purchaser of leaseholds, or of freeholds subject to a lease, has notice of the covenants in the lease, can be extended to fix him with notice of collateral facts stated in such covenants? If such facts disclose a defect in the vendor's title, the Court will not compel the purchaser to perform his contract, whether he had notice or not.

lished. The particulars of sale described the property as follows:

"The well-built House and Shop, eligibly situate on the Crown Estate, and being 33 Upper Albany-street, Regent's Park, comprises," stating the rooms on each floor.

"Let to Mrs. Lucy Phillips on lease for

14 years, at per annum

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"Held by lease for a term of 95 years, from 29th September, 1829, at a ground rent of per annum

56 0 0

16 0 0

£40 0 0"

And the 5th condition of sale was as follows:

That, within four days from the day of the sale, the vendor shall, at his own expense, deliver to the purchaser an abstract of his title, commencing with an indenture of the 13th day of January, 1830, being the lease by which the premises were granted to him. The purchaser shall not require proof or production of the lessor's title, or any title prior to such lease; and if he insist on any evidence in proof of the identity of the premises, or that the covenants in the lease, or any of them, have been duly performed, the same must be had at his own expense."

The abstract was duly delivered. It stated, first, a lease of the premises in question, by deed, dated the 13th of January, 1830, and made between George Mallam of the one part, and the Plaintiff of the other part, for the term of ninety-five and three quarter years from the 29th day of September then last, at the rent of 16l., payable quarterly; and it stated the effect of the covenants; and that among the rest there was a covenant in the lease "to paint twice over, in good and proper oil colours, all the outside wood and iron work, and recolour and repaint in imitation Bath

1854.

DARLINGTON

v.

HAMILTON

Statement.

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