case earl of Shelburne and another appellant nicholas Biddulph respondent that  may Mews dig seven viii the operation of a fine levy by a tenant in tail who  have the immediate reversion in fee in himself be to merge the estate tail and  bring the reversion in fee into immediate possession by which mean it will  become liable to the encumbrance of all those who be seize of it therefore  where a settle his estate to himself for life remainder to b his old son in  tailmale remainder to c his young son in like manner remainder to his own  right heir b be in possession grant lease with covenant for a perpetual  renewal and afterward die without issue c the remainderman enter and levy a  fine the use of which be declare to himself in fee it be hold that c be bind  to a performance of b s covenant in the lease judgement of the Irish court of  exchequer affirm covenant for the perpetual renewal of lease be consider as  real agreement and go with the land and will therefore affect even the legal  interest of all those who take the estate with notice of these lease and  covenant see cruise on fine and Symonds v Cudmore show salk salk Mod Mod Carth  skin holt Freem this case ought to have be class under the head of fine brown  Charles Lord Shelburne elder brother of the appellant the earl be entitle to  the inheritance of the land of Logamarley otherwise Annasclan and Ballyngown  in the king county subject to the dower or some interest for life of his  mother Elizabeth lady dowager Shelburne he together with his say mother by  indenture date the that of December grant and demise the say land to Henry  salmon his heir and assign for the life of the say Henry salmon Henry salmon  the young his son and Robert Hutton at the rend of pound a year for the first  three year and pound a year for the residue of the time and lady dowager  Shelburne and Lord Charles thereby covenant with Henry salmon the lessee his  executor administrator and assign that if upon the death of either of the life  name in the lease the say Henry salmon his executor administrator or assign  shall be incline to name a new life in the place of he so die they will upon  request perfect a lease of the land for a new life under the same rend and  covenant in the then lease provide that the say Henry salmon his executor  administrator or assign shall pay pound in consideration of such renewal  within three month next after such death to the say lady dowager Shelburne and  Lord Charles their executor administrator or assign or either of they this  lease by assignment become afterward vest in Nicholas Biddulph the respondent  grandfather to who the say Charles Lord Shelburne by indenture date the that  of October also grant the town and land of Rathrobbin brown er p curragh and  beredagh with other land lie in the barony of Ballyboy in the king county to  hold to he his heir and assign for the life of charity Biddulph wife of  Nicholas the lessee Francis Biddulph his son and heir father of the respondent  and Alice Biddulph old daughter of Nicholas the lessee and the life of the  survivor and survivor of they and for and during the life and life of such  person or person as by virtue of the say deed shall from time to time  successive and for ever be add thereto at the yearly rend of pound S d for the  first six year and the yearly rend of pound S d for the remainder of the term  and there be a covenant on the part of Charles Lord Shelburne his heir and  assign for a perpetual renewal of this lease by insert a new life in the room  and stead of every life which shall fail from time to time upon the lessee his  heir or assign pay half a year rend accord to the respective reservation  therein contain for that half year wherein such life shall so cease or fail  over and above the annual rend reserve and nominate a new life within twelve  month after the failure of each of the life then in be or to be afterward  nominate and Nicholas Biddulph thereby covenant for himself his heir and  assign to pay to the say Lord Shelburne his heir and assign from time to time  upon failure of every person for who life the lease shall be hold half a year  rend above the reserve rend within twelve month after brown the failure of  every such life and if upon failure of any life he his heir or assign shall  not pay the fine within the twelve month and nominate another life it shall be  lawful for the Lord Shelburne his heir and assign from thenceforth for ever to  refuse to add any other life in the lease and after the failure of the life  then in be the lease shall determine and the lessee also covenant to lie out  within six year pound in building a good farmhouse and outhouse on the premise  and within the same term to enclose one acre and plant it with fruit tree and  to plant at least tree of oak ash or elm and sufficient to ditch and quickset  all the mere and bind of the premise and to maintain and keep the house and  improvement in good repair and a letter of attorney be insert in this lease  for livery of seize which appear to have be deliver accord Charles Lord  Shelburne by another indenture date the that of October also grant and demise  to the same Nicholas Biddulph but by the mistake surname of Bidwell the land  of Cullymore in the say barony of Ballyboy and king county to hold to he his  heir and assign for the life of Nicholas the lessee and charity his wife who  by mistake be call Dorothy Bidwell and Francis Biddulph the respondent father  therein also by mistake call Francis Bidwell old son of the say Nicholas and  of the long liver of they subject to a rend of pound Payable half yearly free  from tax and in this lease there be the like covenant as in the last mention  lease for a perpetual renewal on payment of a fine of half a year rend and on  the nomination of a new life within twelve month after failure of each life in  the lease or which shall afterward be nominate and on this lease there  likewise appear to have be livery of seize and the appellant Henry earl of  Shelburne be a subscribe witness thereto Nicholas Biddulph in confidence of  enjoy the benefit of these lease and not in the least suspect the title of  Lord Charles or his power to grant such lease lie out very great sum of money  in the improvement of the several estate thereby demise and constant pay the  several rend reserve thereon to Charles Lord Shelburne during his life and  afterward to the appellant the earl Charles Lord Shelburne die in April  without issue and intestate and upon his death Henry earl of Shelburne his  brother and heir possess his personal estate and become entitle to several  estate of the yearly value of pound and upward of which Lord Charles die seize  in feesimple and which descend to the earl as his brother and heir at law and  he claim title to the inheritance of the several estate comprise in the before  mention lease subject to the jointure estate of the dowager lady Shelburne in  part of the land receive the rend reserve upon those lease from time to time  as they become due and in easter term the earl levy a fine with proclamation  of the say demise estate brown afterward by indenture of lease and release  date the that and that of April in consideration of a marriage then intend and  which afterward take effect between the earl and Arabella boil and of her  portion lady Shelburne and the earl limit and convey the estate comprise in  the say lease and the other brown er p estate which have descend to the earl  as heir of his brother to the use of the earl and his heir till the marriage  and after the marriage subject to the jointure estate of the lady dowager  Shelburne in part of the land in the king county and to a term of year therein  create in trustee for secure a rentcharge of pound per and to Arabella boil  afterward countess of Shelburne for her separate use to the use of the  appellant the earl of Shelburne for life without impeachment of waste with  remainder as to part of the land to Arabella boil for life for her jointure  with remainder as to the whole to the first and other son of the appellant the  earl on the body of the say Arabella in tail male with remainder to the  appellant the earl and his heir in which release there be a power reserve to  the earl after the death of the lady dowager who die soon after to make lease  of the premise and to his then intend wife the countess of Shelburne after his  decease to make lease of such part as be contain in her jointure for year or  three life at the best improve yearly value and a covenant be therein contain  that the earl be then seize of a absolute estate of inheritance in feesimple  and have power to grant and limit the estate accord to that deed and that the  premise shall be and remain to and for the several use and estate therein  limit and appoint and shall be hold and enjoy accord free from all former  encumbrance other than and except the several lease then in be thereof under  the several rend thereon respective reserve Nicholas Biddulph after the death  of Charles Lord Shelburne continue in quiet possession of the say leasehold  estate and duly pay his rend to the appellant the earl till march when he die  intestate leave the before name Francis Biddulph his son and heir a infant of  the age of twelve year who thereupon become entitle to the say several  leasehold estate as special occupant and charity Biddulph his widow as  guardian to her son Francis before any rend become due in pursuance of the  covenant in the lease of the land of Cullymore within twelve month after the  death of Nicholas Biddulph tender the fine due on his death and nominate John  Biddulph the young another son of the say Nicholas Biddulph as the life to be  insert in the lease in his stead and demand a renewal of that lease accord to  the covenant and Alice Biddulph one of the life name in the lease of the land  of Rathrobbin die in December Francis Biddulph within twelve month after her  death name the respondent as the life to be insert in that lease in her stead  and tender the fine due upon her death together with all arrear of rend to  Andrew Kennedy the earl agent in Ireland his lordship be then in brown England  and demand a renewal of that lease accord to the covenant Francis Biddulph the  respondent father upon the respondent marriage with patience colley by  indenture of lease and release date the that and that of April in  consideration of the marriage and portion convey all the leasehold estate  before mention to the use of the respondent for life with several remainder  over and the respondent have become entitle to these estate under this  settlement and the appellant the earl soon after come into Ireland the  respondent wait upon his lordship and again apply for a renewal of the say  several lease and name the life of John Biddulph to be insert in the place of  the say Nicholas the respondent grandfather in the lease of the land of  Cullymore in pursuance of the nomination before make by charity Biddulph the  respondent grandmother and name his the respondent own life to be insert in  the lease of the land of Rathrobbin in the place of Alice Biddulph and he  likewise name his own life to be insert in the lease of the land of Logamarley  in the stead of Henry salmon who be then also dead and the respondent at the  same time tender to the earl the several fine which have become due upon the  several death before mention together with all arrear of rend but the  appellant the earl though he have constant receive the rend reserve upon these  lease from the respondent and his fatherland grandfather and have never  question their validity yet absolute refuse to accept the fine or execute any  renewal of the lease allege that Charles Lord Shelburne the lessor be only  tenant in tail of the demise land under a settlement make in the year and have  never levy any fine or suffer any recovery thereof have no power to make any  such lease and that he the appellant have by his fine and settlement in convey  the estate which he become entitle to upon the death of brown er p Lord  Charles to the use of himself for life with remainder to his first son in tail  by which the inheritance be then vest in the other appellant the Lord  Dunkerron he be not bind by the before mention covenant nor be able to execute  any such renewal to the respondent the respondent thereupon in July exhibit  his bill in the court of exchequer in Ireland against the appellant state the  say several lease and his title to they and the several tender make on the  drop of the respective life above mention and pray that the appellant earl  Henry may be compel to execute renewal of the say lease accord to the covenant  therein contain on payment of the say respective fine or that the respondent  may have a compensation out of the real and personal asset of the say Charles  Lord Shelburne decease the appellant the earl in July put in his answer to  this bill and thereby state the settlement in and admit that his brother Lord  Charles die seize of several estate in fee one of which be of the yearly value  of pound S d and another of pound per and which estate have descend to he as  brown brother and heir of Lord Charles and he further state that soon after  the death of Lord Charles by indenture of lease and release date the that and  that of April be a settlement make upon his intermarriage with the countess  his wife in consideration of the say marriage and of her marriage portion all  the say land subject to the estate for life of the lady dowager Shelburne be  limit to the use before state whereby he be make tenant for life with a  remainder in tail which be then vest in the other appellant Lord Dunkerron the  earl then admit that there be such covenant and clause in the settlement in  relation to the lease in be of the estate as before mention that he have  refuse and still do refuse to renew the say lease and insist that he be not  oblige to do so in regard he do not claim under his brother Lord Charles and  therefore do not take the estate subject to any lease or encumbrance make by  he who he insist have no power to make such lease with such covenant of  renewal as aforesaid and admit that he have levy a fine of the premise in  easter term but that he have suffer no recovery exception have be take to this  answer the earl on the that of February put in a further answer and thereby  admit that he have ever since the death of Lord Charles accept the rend  Payable by the say lease be advice that the lease be during the continuance of  any of the life for which they be original grant good and valid against he the  cause be at issue witness examine and publication duly pass it come on to be  hear on the that and that of November when the court declare their opinion  that the respondent be entitle to renewal of the three lease in the plead  mention accord to the covenant in the say respective lease upon payment of the  rend and arrear and fine with interest and therefore decree that it shall be  refer to the chief remembrancer to state a account of what be due to the  appellant earl Henry for the rend and arrear on the say respective lease and  also for the respective fine with interest from certain time in the decree  mention after the death of the several life on which renewal be claim and that  upon payment of such rend arrear and fine with interest lease shall be  respective grant by the appellant for the life in the bill mention accord to  the covenant of renewal for ever on which account all party be to have all  just allowance and if any matter appear difficult the remembrancer be to  report the same special and it be decree that the Lord Dunkerron shall have  his cost from the respondent who be to recover the same together with his own  cost from the appellant the earl from this decree the present appeal be bring  and on behalf of the appellant it be argue d rider r Wilbraham that tenant in  tail at law independent of the statute of Henry VIII have no right to make a  lease absolute to bind the issue in tail and much less the remainderman and  that even by that statute a tenant in tail have no brown power to grant lease  to bind those in remainder and therefore the lease in question be absolute  void as against the appellant earl Henry who do not claim under Lord Charles  or as issue in tail but as remainderman it may be object that Lord Charles who  grant the lease be tenant in tail with remainder to the earl in tail and a  reversion to Lord Charles in fee that there brown er p before not only the  estate tail be bind but the reversion also and as the earl have by fine  destroy the estate tail in order to acquire a absolute power over the estate  the prior grant of Lord Charles shall take place of any subsequent use by earl  Henry and will therefore bind the estate in his hand but to this it be answer  that the estate tail out of which the lease first arise be spend and the earl  not claim under it but by a distinct limitation to himself in tail male his  fine can not let in Lord Charles lease upon that estate which come in lieu of  the earl estate tail nor can it by consolidate the two estate let they in upon  the reversion both because the earl acquire a new estate and because the use  of the fine be never declare to he in fee but direct to the use of the  settlement by which in consideration of his own marriage the earl have a  estate for life only with remainder to his first son the other appellant and  these estate arise and be grant out of the estate tail which the earl have  before the fine and not out of the reversion but even if the fine do let in  the lease the most that can be insist on be that it let they in during the  continuance of those lease only and can not extend to lease not then in be for  there can be no ground of equity to carry it far and make the fine give they a  great benefit than the law give they which be the mere legal effect of a act  do for a other purpose and by accident only turn to their benefit without any  precedent right to it or any consideration for it and therefore with respect  to the respondent total voluntary it may also be object that in the settlement  make by earl Henry there be a exception of the lease and consequent this must  establish they and ever covenant in they to this it be answer that earl Henry  at that time which be very soon after the death of his brother have no notice  of these lease but there be many upon the estate it be a prudent caution in  the covenant against encumbrance to except the lease by which however nothing  more be intend than to secure the covenanter against any breach of covenant or  any loss or damage that may ensue therefrom but there can be no ground for  insist that the exception in the covenant shall establish or confirm the lease  any otherwise than so far as they be good and available in law and much less  that the respondent or those under who he claim who be no party to the  settlement nor gavel any consideration for this benefit have a right to come  into a court of equity to have the benefit of this exception or any suppose  agreement imply in it in their favour brown as to the alternative relief pray  by the bill of either a specific performance or a satisfaction out of the  personal or real asset of Lord Charles it be say that if the respondent be  entitle to any satisfaction it must be by way of damage for nonperformance of  the covenant which be a matter triable mere at law because a court of equity  can assess damage and as earl Henry have convey all the freehold premise by  lease and release in which be before the act of and of William and mary for  prevent fraudulent alienation and before any suit be commence for  nonperformance of the covenant for renewal it be apprehend that the appellant  be not now liable to any suit or action on account of the real asset which  descend to they from Lord Charles the whole estate which descend to earl Henry  be settle upon the appellant Lord Dunkerron who be a purchaser for a valuable  consideration and consequent he can not be charge beside it do not appear that  any consideration be pay to Lord Charles upon grant these lease the sum say to  be lie out upon the premise be small and not more than may have be lie out a  tenant for three life and therefore the respondent have no merit or pretence  to be relieve in equity on that account on the other side it be contend W  Murray t clarke that by the fine which earl Henry levy in the estate tail  limit in remainder to he by the settlement of be bar and extinguish in the  same manner to all intent and purpose as if he be dead without issue and the  reversion in fee which descend to he as heir of Lord Charles immediate take  effect in possession and as the new use in the marriage settlement of arise  out of that reversion in fee they be therefore subject to all antecedent  encumbrance and engagement which can affect that reversion that as this  reversion in fee after it have take effect in possession by mean of the fine  be specifical bind by the covenant for perpetual renewal and as such covenant  be consider as real agreement and go with the land so they be in their nature  proper for a specific performance and will in equity affect brown er p the  legal interest of all those who take the estate with notice of they that all  those claim under the settlement of have notice of these lease and covenant  and be as much bind by a equitable lie upon the land as earl Henry himself  especial in favour of lessee who have make very great improvement and be  therefore to be consider as purchaser of the right of renewal that the  appellant the earl be absolute bind by the warranty and asset of his brother  Lord Charles even before the fine levy and can not have enter and avoid the  lease during the legal extent of they by reason of such warranty and asset but  if the earl notwithstanding the warranty and before levy the fine can have  enter on the land and avoid the lease the lessee will have be clear entitle  under the covenant to have receive a satisfaction for their damage out of the  real asset of Lord Charles descend to he which be then in his possession and  brown abundant more than sufficient to have satisfy such damage the right  therefore which the lessee have gain by the fine let in the reversion and give  they a specific remedy upon it be such a advantage as a court of equity ought  to enforce by its decree as much as if Lord Charles have die seize of a  immediate estate in feesimple of the leasehold premise in question that the  defence make by the earl against the respondent receive a satisfaction out of  the real asset of Lord Charles be most inequitable as it tend to deprive the  respondent who be a fair purchaser of the benefit of his lease and covenant by  a act of the earl himself who beside the profit receive from his brother  estate have also receive in the portion of his wife a consideration for the  alienation of his brother asset by the settlement and with respect to Lord  Dunkerron no encumbrance be bring by this decree upon the estate which he  derive under his father settlement but what appear from the express exception  in that settlement to be intend as a charge upon it it be therefore hope that  the decree will be affirm and the appeal dismiss with cost after hear counsel  on this appeal the follow question be put to the judge videlicet whether by  the fine levy by the appellant the earl of Shelburne in easter term the  reversion in fee of the estate in question be let in subject to the lease in  question make by Charles Lord Shelburne and the covenant therein contain for a  perpetual renewal and the lord chief justice of the king bench have deliver  the unanimous opinion of the judge to this effect videlicet that the lease for  life now in be be good and effectual as be serve out of the reversion in fee  which Lord Charles have when he make they and which be now in Lord Henry and  that the covenant for renewal be bind on Lord Henry as a lie on the same  reversion which he have let in by bar discharge and extinguish his estate tail  it be order and adjudge that the appeal shall be dismiss and the decree  therein complain of affirm and that the appellant the earl of Shelburne shall  pay to the respondent pound for his cost in respect of the say appeal jour vol  p rend