Bannatyne v Barrington

• Jurisdiction: Ireland
• Judgment Date: 11 January 1859
• Date: 11 January 1859
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

BANNATYNE

and

BARRINGTON.

As to Ferguson v. Lomax 2 Dr. & War. 129.

Walker v. Lorton 6 Ir. Chan. Rep. 329.

—Saunders v. HardingeENR5 T. R. 9.

Drummond v. Drummond 6 Bro. Pc. 601.

Brodie v. Barry 2 Ves. & B. 132.

Richards v. Goold 2 Dr. & War. 131.

Robinson v. Bland 1 W. Bl. 256.

Male v. RobertsENR3 Esp. 163.

Ferguson v. FyfeENR8 Cl. & Fin. 121.

Cooper v. Waldergrave 2 Bea. 282.

Rothschild v. Cruise 1 Q. B. 43.

Dalzell v. Dalzell 5 Ir. Chan. Rep. 463.

Richardson v. NixonUNK 2 Ir. Eq. Rep. 620.

Walker v. Lorton 6 Ir. Chan. Rep. 329.

Crossley v. ArkwrightENR2 T. R.603.

Saunders v. HardingeENR5 T. R. 9.

Waters v. MansellENR3 Taunt. 56.

Davies v. Brien 6 B. & Cr. 651.

Cooper v. GodmonUNK 3 Moo. & Sc. 219.

Roberts v. MaddocksENR13 Sim. 549.

Earle v. BrowneENR 10 Ad. & El. 412.

Tidd v. Lyster 3 De G., M'N. & G. 874.

Williamson v. GooldENR1 Bing. 234.

Walker v. Lorton 6 Ir. Chan. Rep. 329.

Ferguson v. Lomax 2 Dr. & War. 120.

In Stapleton v. ConwayENR3 Atk. 726.

Ormond v. Cope 3 L. R. 88.

Lansdowne v. LansdowneENR2 Bli. 60.

Noel v. RochfortENR 10 Bli., N. S., 483.

Cope v. CopeENR15 Sim. 118.

Burtwhistle v. VardillENR 7 Cl. & Fin. 936.

Drummond v. DrummondENR 7 Bro. P. C. 629.

Robinson v. BlandENR2 Burr. 1077.

Warrender v. WarrenderENR2 Cl. & Fin. 488.

Dalzell v. Dalzell 5 Ir. Chan. Rep. 463.

Nelson v. BridportENR8 Beav. 547.

Hart v. LovelaceENR 6 T. R. 476.

Denn d. Dolman v. Dolman 5 T. T. 641.

Ferguson v. Lomax 2 Dr. & War. 120.

Searle v. ColtENR1 Y. & C., C. C., 36.

Tidd v. Lister 3 D., M & G. 874.

Walker v. Lord Lorton 6 Ir. Chan. Rep. 329.

Mestaer v. Gillespie 11 Ves. 639.

Hood v. Burlton 2 Ves. Jun. 28.

Jones v, Harris 9 Ves. 486.

Rothschild v. Currie 1 Q. B. 43.

graveENR2 Beav. 282.

Angell v. HaddonENR 2 Mer. 168.

Earle v. BrowneENR 10 Ad. & El. 412.

Churchill v. BertramENR 2 Gal. & Dav. 548.

Crossley v. ArkwrightENR2 T. R. 603.

Faircloth v. GurneyENR 2 M. & Sc. 827.

Ricnards v. Goold 1 Moll. 22; S. C., 2 Dr. & War. 139 n.

Sunders v. HardingeENR5 T. R. 9.

Noel v. Rochfort 4 Cl. & F. 204.

Mestaer v. Gillespie 11 Ves. 639.

Cowper v. GodmanENR 3 M. & Sc. 219.

Molton v. CamrouxENR4 Exch. 17.

Jones v. Harris 9 Ves. 486.

Angell v. Hadden 2 Meriv. 168.

Ferguson v. Lomax 2 Dr. & War. 120.

Earl of Mansfield v. Ogle 7 De G., M'N. & Gor. 181.

Jones v. Harris 9 Ves. 492.

Bromley v. Holland 7 Ves. 23.

Saunders v. HardingeUNK 5 Term Rep. 9.

Crossley v. ArkwrightUNK 2 Term Rep. 603.

In Angell v. Hadden 2 Meriv. 167.

Faircloth v. GurneyENR 2 M. & Sc. 827.

Clayton's caseUNK 5 Rep. 1.

In Hall v. CazenoveENR 4 East, 481.

Hudson v. RevettUNK 2 M. & P. 690.

Bowker v. BurdekinENR 11 M. & W. 147.

Nash v. FlynUNKUNK 1 J. & Lat. 175; S. C., 6 Ir. Eq. Rep. 565.

Tuthill v. Beaumont Hayes & J. 742, 745.

British Commercial Insurance Company v. Magee Cooke & Alc. 182.

Noel v. Rochfort 4 Cl. & F. 204.

Story Conflict of Laws.

In Birtwhistle v. VardillENR 7 Cl. & Fin. 936.

Drummond v. DrummondENR 7 Bro. P. C. 629 (Toml. Ed., 1803).

In Ferguson v. Lomax 2 Dr. & War. 120.

Walker v. Lorton 6 Ir. Chan. Rep. 329.

Russell v. LedsamENR 14 Mees. & W. 588.

Doe v. Kensington 8 Q. B. 429.

Horn v. HornENR 7 East, 532.

Blake v. Attersoll 2 B. & Cr. 881.

In Buckeridge v. Flight 6 B. & Cr. 53.

Jackson v. LeverENR 3 Bro. C. C. 613.

Dupuis v. Edwards 18 Ves. 362.

Robinson v. Bland 3 Bur. 1077.

Warrender v. Warrender 2 Cl. & F. 488.

Robinson v. BlandENR2 Burr. 1077.

Noel v. Rochfort 4 Cl. & F. 158.

Ferguson v. Lomax 2 Dr. & War. 132.

Buckeridge v. Flight 6 B. & Cres. 53.

Blake v. Attersoll 2 B. & Cres. 875.

Davis v. Bryan 6 B. & Cres. 651.

Waters v. MaunsellENR3 Taunt. 56.

Sugden on Vendors 10th ed., 1033.

Scott v. Dunbar 1 Moll. 453.

406 CHANCERY REPORTS. 1858. Ch. Appeal. court et Sipa in ebanttrp. Dec. 9, 10. 1859. Jan. A and Bb • THIS case came before the Court on appeal from the decision of seised of lands in Ireland, and his Honor the Master of the Rolls (reported supra, vol. 8, p. 150), entitled to the allowing exceptions to the Master's report in the cause. The mate- interest on a mortgage of rial facts of the case are very fully stated in the judgment of the lands in Ire land, by deed of LORD CHANCELLOR. 1839 conveyed the lands and mortgage to C and D, dur- Mr. Serjeant Deasy, Mr. F. A. Fitzgerald and Mr. Tudor, for ing the lives of A and B, and the appellant. the life of the survivor, upon The first question is, whether this transaction was at all within trust, by sale, the Annuity Act, 53 G. 3, c. 141, which exempts Ireland from mortgage or grant of annui- its operation ? The next question is, can the parties now desiring ty, to raise a sum of money to avoid it be permitted to object to it ? +As to the first, it is to pay off the debts of A and plain this was an Irish contract ; it was made in Dublin, through' B. By deed, of the 15th of the agency of Mr. James Josiah Hardey, then domiciled in Dublin, July 1840, A, B, C and D with Mr. Ball, an Irishman. The deeds, though executed by the granted two annuities to E, grantors in England, were delivered in Ireland ; and it was from to be charged upon, and is- the delivery, and not from the execution, they took effect. The suing out of, great bulk of the property charged was Irish. It is clear that the property comprised in the trust deed. A and B, by this deed, covenanted to pay the annuities. By a deed, of the 26th of June 1840, which recited the deed of the 15th of July 1840, as if it had been previously execuÂted, A and B assigned their interest in a fund in the Court of Chancery in England, upon trust, among other things, to secure the annuities granted by the deed of the 15th of July. All the parties except E resided in England ; and the preliminary Agreement was made in Ireland, through an agent of C and D, there resident. The deeds were executed by A, B, C and D, in England, upon Irish stamps, but delivÂered to E in Ireland; and warrants of attorney, to enter judgment in both countries against A and B, further to secure the annuities, were also executed in England. The consideration for the annuities was paid in Ireland, in notes of the Bank of Ireland, and applied by the trustees on the trusts of the deed of 1839.-Held, that the grant of these annuities came within the exception in the English Annuity Act, 53 G. 3, c. 141, s. 10, and was not voidable for want of compliance with the formalities imposed by that statute. Held further, that a puisne incumbrancer on A's interest could not impeach the annuities by a discharge, in a suit to administer the fund (the produce of the mork. gage) on which the annuities were a charge. * Coram The LORD CHANCELLOR and LORD JUSTICE OF APPEAL. CHANCERY REPORTS. 407 all the deeds constituted one transaction, and were the results of 1858. Ch. Appeal. one'negociation, and that the real intention was to grant an annuity BANNATINE issuing out of the lands in Ireland, and that all the other securities v. BARRINGTON. by covenant, &c., were merely collateral, some of them in fact for- - mal and accidental. The consideration money was paid in Ireland; Argument. and the annuity also was to be paid there, being in strictness payÂable on the lands out of which it issued. As to Ferguson v. LoÂmax (a), relied on at the other side, it is an expression of opinion of Lord St. Leonards, and not an actual decision ; and, besides, when examined, it only amounts to this, that where the main -and principal features of a contract are English, the mere facts of a security on Irish land being thrown in collaterally, and the lenders being Irish, will not prevent the contract being an English one. In this case, all the principal subject-matter of the contract is Irish, and the charge on the English fund merely collateral. As to the authority of Walker v. Lorton (b), that case was comÂpromised, and may be said to be now under review. Then the parties now impeaching these deeds ought not to be listened to. No doubt, the words of the statute are, that the grant shall be " void ;" but that word has been now settled to mean, in this statute, as in many others, " voidable " only ; there is but one case really contrary to this doctrine-Saunders v. Hardinge (c) ; and that must now be considered as virtually overruled. It is further settled that this statute being merely for the protection of private interests, the grantor is the party to avail himself of it ; and there is no case in which the Court have acted on a supposed or alleged transfer of this right to incumbrancers on the grantor's interest in the lands or fund charged. The greatest injustice and inconvenience might result from permitting an incumbrancer to assume such a right ; for the annuitant being entitled, in case of the avoidance of the transaction, to a return of his money, the grantor might be involved in the most serious difficulty in repaying the consideration money after it was all spent. The result would be to turn an Act intended for the advantage of grantors to their (a) 2 Dr. & War. 129. (b) 6 Ir. Chan. Rep. 329. (c) 5 T. R. 9. 408 CHANCERY REPORTS. prejudice. What could be more unjust in the present case than that the trustees should be required to repay the consideration money of these annuities ? If these parties can at all raise this objection, they should do so in a substantive suit, in which the rights of all parties could be cared for. Then the Annuity Act has been repealed by 17 & 18 Vic., c. 90, saving as to the effect of " any act done." It is here attempted to be used not as to an "act done," but an act omitted. They referred also to Drummond v. .Drummond (a); Brodie v. Barry (b); Richards v. Goold (c); Robinson v. Bland (d); Male v. Roberts (e); Ferguson v. Fyfe (D ; Cooper v. Waldegrave (g) ; Rothschild v. Cruise (h) ; Dalzell v. Dalzell (i); Richardson v. Nixon (k)...