Beattie v Cordiner

• Jurisdiction: Ireland
• Judgment Date: 09 July 1902
• Date: 09 July 1902
• Court: Court of Appeal (Ireland)

BEATTIE

and

CORDINER

Chancery Division

Appeal

Practice — Administration — Secured creditor — Proof by, against the real estate — Real estate likely to prove deficient — Lapse of eleven years — Application to prove against personalty — Funds in Court.

Blake v. GaleELR 32 Ch. D. 571.

Cattell v. SimonsENR 8 Beav. 243.

Edgar v. PlomleyELR [1900] A. C. 431.

Gurney v. Lord Oranmore 5 Ir. Ch. R. 436.

Gurney v. Oranmore (Browne's Case) Ibid. 447.

Gurney v. Oranmore 5 Ir. Ch. R. 447.

Leahy v. De MoleynsIR [1896] 1 I. R. 206.

McMurdo's CaseUNK 86 L. T. 553.

Mohan v. BroughtonELR [1899] P. 211, 219.

Re McMurdo; Penfield v. McMurdoELR [1902] 2 Ch. 684.

Re McMurdoUNK 86 L. T. (N. S.) 553.

Ridgway v. NewsteadENR 3 De G. F. & J. 474.

CASES DETERMINED BY THE CHANCERY DIVISION OP THE HIGH COURT OF JUSTICE IN IRELAND. AND BY THE IRISH LAND COMMISSION, AND ON APPEAL THEREFROM IN THE COURT OF APPEAL. 1903. BEATTIE v. CORDNER. (1888. No. 10,168.) Practice—Administration—Secured creditor—Proof by, against the real estate —Real estate likely to prove deficient—Lapse of eleven years—Application to prove against personalty—Funds in Court. In an action for administration of assets, the primary decree had been made on the 26th July, 1888. A mortgagee on portion of the real estate proved his debt against the realty alone on the 13th February, 1889. In May, 1890, leave was given by the Court to present a petition to the Land Judge for sale of the real estate, including the lands comprised in the mortgage. The order for sale was made by the Land Judge, and a receiver was appointed. At the time that the mortgagee proved against the real estate it was believed that the proceeds of the sale of the realty would be sufficient to pay the mortgages. Subsequently the security became depreciated owing to circumstances beyond the control of the mortgagees, and was insufficient for payment of the incumÂbrances. Some simple contract creditors had proved against the personal estate, but there was more than enough money in Court to pay their debts. 3903—VoL. I. THE IRISH REPORTS. [1903. On the 9th June, 1902, the mortgagee applied for leave to prove against the personal estate the amount of his mortgage debt and interest : Held (reversing the order of Porter, 111.R.), that the money being still in Court, the mortgagee was entitled to prove against the personal estate, so long as the rights of the other creditors who had already proved against the personalty were not affected. B Y indenture of mortgage, dated the 17th December, 1877, Richard Davidson Harrison mortgaged the Ardkeen estate, in the county of Down, to secure £8000 and interest to Maria Kirk and William N. Wallace. Maria Kirk died in April, 1881, and the said sum of £8000 became vested in William N. Wallace. By indenture, dated the 15th April, 1891, William N. Wallace assigned the mortgage to Robert H. Wallace and himself. Of this sum of £8000, £7000 was due to George E. Kirk, and the remaining £1000 was due to Pardo A. Kirk, and was vested in the trustees of his marriage settlement. By indenture, dated the 26th March, 1902, Robert H. Wallace assigned to George E. Kirk £7000, portion of the mortgage for £8000 ; and there was due on this mortgage £7000 for principal, together with £3751 for interest down to the 25th May, 1902. Richard Davidson Harrison died on the 9th January, 1888, and his will was proved by Clement Cordner, one of the executors. On the 27th April, 1888, the present suit was instituted to adÂminister the real and personal estate of Richard Davidson HarÂrison. The primary decree was made on the 26th July, 1888, by which it was directed that the testator's personal estate should be applied in payment of his debts ; and if it was insufficient it was ordered that inquiries should be made as to what real estate the testator was seized of and what incumbrances affected the same. From the commencement of the proceedings down to the end of 1901 it was considered that the personal estate of Richard Davidson Harrison was insufficient to discharge the simple contract creditors, and that the real estate would have to be resorted to. On the 13th February, 1889, an affidavit was sworn by W. N. Wallace, proving the claim on foot of the mortgage against the real estate of Richard Davidson Harrison comprised in the mortgage. VOL. I.] CHANCERY DIVISION. 3 In May, 1890, leave was given by the Master of the Rolls to M. R. -Pardo Kirk, who was also a puiszle mortgagee on the lands corn- 1902. prised in the mortgage of 1877, with other lands not comprised BF4TTIE therein, to present a petition to the Land Judge for sale of all the e _o DNER. lands. A petition for sale was presented, and a receiver was appointed in the matter on the 9th November, 1891. The rental of the agricultural portion of the estate had been settled, a request had been issued to the Irish Land Commission under the 40th section of the Land Law (Ireland) Act, 1896, and the lands had been inspected, but no report had been received. The gross rental of the Ardkeen estate, upon which the mortÂgage of the 17th December, 1877, alone was charged, amounted to £2322 2s. 9d., and there was a small head-rent in addition of £4 10s. Assuming that the entire would sell for twenty years' purchase, it would amount to £46,532, from which there would have to be deducted a sum of £6296, being the estimated price for the redemption of the superior interests affecting the said lands, leaving a balance of £40,236. This was exclusive of the costs of sale and redemption. The incumbrances charged on the Ardkeen estate prior to the mortgage of the 17th December, 1877, as appeared by an order of the Land Judge's Court, fixing priorities, dated the 22nd April, 1902, amounted to £34,587 17s. 9d. In addition to that, there was an annuity of £250 charged on the lands in favour of Mrs. Withers, formerly wife of Henry Harrison, deceased. This annuity was also charged on lands known as Holywood House and demesne, and had not been formally apporÂtioned, but the proportions payable out of the Ardkeen estate and out of the Holywood House and demesne had been fixed, pursuant to a ruling of the Land Judge, at £209 and £41 respectively. The judgment on further consideration on the Chief Clerk's cerÂtificate was pronounced on the 26th July, 1899. The amount of money in Court to the credit of the cause amounted to £5600, and the debts of the creditors who had proved against the personal estate amounted to £2176. In addition to the real estate comprised in the mortgage of the 17th December, 1877, Richard Davidson Harrison was entitled to a reversionary interest in estates of which his uncle, the late John Harrison, was then tenant for life, situate in the county of B2 4 THE IRISH REPORTS. [1903. N. R. Down, and in the cities of Belfast and Dublin. These reverÂ1902. sionary estates were in the possession of Henry Harrison, as BEATTIE residuary legatee of his brother Richard Davidson Harrison, the v. COB.DNEE. testator in this matter. On the 9th June, 1902, George Kirk applied to the Master of the Rolls for an order for leave to prove against the personal estate in respect of the principal sum of 7000, and all arrears of interest due thereon, and that in the event of the personal estate of Richard Davidson Harrison proving insufficient, that his real estate should be administered. Henry Harrison, the residuary legatee and devisee of Richard Davidson Harrison, filed an affidavitin opposition to the motion, in which he stated that the mortgagee, having full knowledge of the proceedings at every stage, elected to rely on the...