Becher v Delacour

• Jurisdiction: Ireland
• Judgment Date: 19 January 1881
• Date: 19 January 1881
• Court: Chancery Division (Ireland)

M. R.

BECHER

and

DELACOUR.

Burrell v. Lord EgremontENR 7 Beav. 206.

Harty v. DaviesUNK 13 Ir. L. R. 23.

Toft v. Stevenson 1 D. M. & G. 28.

Stansfield v. Hobson 3 D. M. & G. 620.

Pendleton v. RoothUNK 1 D. F. & J. 81.

Rodham v. MorleyENRUNK 2 K. & J. 336; on app. 1 D. & J. 1.

Franks v. Mason 9 Ir. Eq. R. 358.

Ryan v. Cambie 2 Ir. Eq. R. 328.

Chinnery v. EvansENR 11 H. L. C. 115.

Carbery v. Preston 13 Ir. Eq. R. 455.

Gregson v. HindelyUNK 10 Jur. 383.

Fordham v. WallisENR 10 Hare, 228.

Homan v. Andrews 1 Ir. Ch. R. 106.

Smith v. Smith 5 Ir. Ch. R. 88, 101.

Fitzmaurices, Minors 15 Ir. Ch. R. 445.

Bolding v. Lane 1 D. J. & Sm. 122.

Dickenson v. Teesdale Ibid. 62.

Farran v. BeresfordENR 10 Cl. & Fin. 330.

Farran v. BeresfordENR 10 Cl. & Fin. 319.

Goddard v. Ingram 3 Q. B. 839.

Smith v. Smith 5 Ir. Ch. R. 101.

Gregson v. HindleyUNK 10 Jur. 383.

Fordham v. WallisENR 10 Hare, 217.

Fitzmaurices, Minors 15 Ir. Ch. R. 145.

Rodham v. MorleyENRUNK 2 K. & J. 356; on app. 1 D. & J. 1.

Statute of Limitations — Money charged on land — Acknowledgment — Tenant for life and remainderman — 3 & 4 Wm. 4, c. 27, s. 40.

VoL. XI.] CHANCERY DIVISION. Statute of Limitations-Money charged on land-Acknowledgment-Tenant for life and remainderman-3 cg 4 Wm. 4, c. 27, s. 40. By a settlement of 1813, a sum of £500 was charged on lands payable on the death of the settlor, who died in 1846. At that time the lands were limited to R. D, for life, with remainder to J. D. in tail. No interest was paid nor was there any acknowledgement of the charge by anyone until the 12th of May, 1873, when R. D., without the consent or knowledge of J. D., paid the person then entitled to the charge the amount thereof and six years' interest, and took an assignment of the charge to a trustee for himself. On the 19th of May, 1873, R. D. and J. D. joined in disentailing the lands. No notice of the charge, or the recent assignment of it, was taken in the disentailing deed. In an action brought in 1879 to raise the charge by a sale of the lands:- Held, that J. D. was not bound by the payment of interest in 1873, and that the charge was barred by the Statute of Limitations, 3 & 4 Wm. 4, c. 27, s. 40. ACTION to raise a charge on lands by sale. The prinoipal defence was the Statute of Limitations, 3 & 4 Wm. 4, o. 27. The writ was issued on the 17th of May, 1879. The material facts of the case are fully stated in the judgment. The Solicitor-General (Mr. W. M. Johnson), Mr. Jellett, Q. C., and .211r. O'Hea, for the Plaintiffs. For the Plaintiffs it was argued that the action having been brought within twenty years after the payment of interest by Robert Delacour, jun., in May, 1873, the case was within the saving in the 3 & 4 Wm. 4, c. 27, s. 40. The statute might be divided into two parts. The first part applied to lands, rents, and mortgages, and included the earlier sections to sect. 34, and that section provided that after twenty years the remedy should be barred and the right extinguished. But in the latter part of the Act, the 40th and 42nd sections, which relate to charges on lands, there was no section corresponding to the 34th, and accordÂingly, though the remedy to recover a charge was barred, the right to it was not extinguished after the lapse of twenty years, and the LAW REPORTS (IRELAND). [L. It. I. law remained as it was under the old Statute of Limitations. There was no direct evidence of payment of interest between 1846 and 1873, but a presumption arose, from the payment of six years' interest in 1873, that the antecedent interest had then been paid-Burrell v. Lord Egremont (1). That a payment of interest after twenty years have expired is sufficient, on the construction of the 40th sect., to save the bar of the statute. That the words of the 40th sect. are, that no suit shall be brought to recover any sum of money " charged upon or payable out of any land but within twenty years after a present right to receive the same shall have accrued to some person capable of giving a discharge or release for the same, unless, in the meantime, some part of the principal money, or some interest thereon, shall have been paid by the person by whom the same shall be payable, or his agent, and in such case no such action or suit or proceeding shall be brought, but within twenty years after such payment or acknowledgment." That the construction of that section depended on the meaning to be given to the foregoing words in italics. " Presentright" meant a right to receive the charge without the happening of any future event, and a present right accrued in this case on the death of Robert Delacour, sen., in 1846. That the meaning of "meanÂtime" was decided in Harty v. Davies (2)-recognized in Sugden on the R. Pr. St. p. 123, and which is in exact conformity with the subsequent decisions in England : Toft v. Stevenson (3), StansÂfield v. Hobson (4), Pendleton v. Booth (5), Rodham v. Morley (6), which affirmed the same principle, though decided on a different statute, the 3 & 4 Wm. 4, c. 42-to mean the time intervening between the accrual of the present right and the commencement of the action or suit : e. in this case, between the 22nd of October, 1846, and the 17th of May, 1879 ; and thus the case fell exactly within the terms of the saving in the 40th section. That " the person by whom the interest is payable" is the tenant for life in the case of an estate in settlement. The statute committed to him, as it were, the guardianship of the inheritance, to protect it (1) 7 Beay. 206. (5) 1 D. F. & J. 81. (2) 13 Ir. L. R. 23. (6) 2 K. & J. 336 ; on app. 1 D. & (3) 1 D. M. & G. 28. J. 1. (4) 3 D. M. & G. 620. Va. XL] CHANCERY DIVISION. against incumbrances, and gave him power to bind it by a payÂment of interest or an acknowledgment of the charge : Franks v. Mason (1) ; Ryan v. Cambie (2) ; Chinnery v. Evans (3). If he considered a claim to be a conscientious one, how could he be comÂpelled to plead the Statute of Limitations ? There was no reason to suppose that the transaction of 1873 was collusive. In Carbery v. Preston (4) the payment must have been after the twenty years had expired. Mr. Campion, Q. C., Mr. Piers F. White, Q. C., and Mr. Mark O' Shaughnessy, for the Defendant : For the Defendant it was contended that a presumption of payment would not bring a case within the saving of the 40th section ; the payment of interest must be an actual payment to save the bar of the statute. That the construction of the 40th section adopted in Harty v. Davies (5) was not the grammatical construction, and struck the words " mean time" out of the secÂtion. Those words referred to the last antecedent, and meant the period intervening between the accrual of the present right and the expiration of twenty years. Though there might be no actual evidence of collusion in this case, the transaction of 1873 was a very extraordinary one ; and it would be a very dangerous doctrine to lay down, that it would be competent for the tenant for life after he had ceased to be a party legally liable to pay the interest, to bind the remainderman who was in no sense in privity with him, by payment of interest or acknowledgment. The grossest fraud might be practised on the remainderman, as for a mere sixpence the tenant for life might sign au acknowledgment : Gregson v. Hindley (6) ; Fordhanz v. Wallis (7). That the cases cited for the Plaintiffs-even Harty v. Davies (5)-were all cases where the payment or acknowledgment was made by the absolute owner of the estate. Stansfield v. Hobson (8) was disapproved of ; Brown on St. of Lim. p. 654. That there was no case deciding that a payÂment after the twenty years had expired would bind the remainder (1) 9 Ir. Eq. R. 358. (5) 13 Ir. L. R. 23. (2) 2 Ir. Eq. R. 328. (6) 10 Jur. 383. (3) 11 H. L. C. 115. (7) 10 Hare, 228. (4) 13 Ir. Eq. R. 455. (8) 3 D. M. & G. 620. LAW REPORTS (IRELAND). [L. E. I. man ; and the late Master of the Rolls, before whom the question had come several times, had expressed a contrary opinion : Homan v. Andrews (1) ; Smith v. Smith (2) ; and had actually decided the point in Fitzmaurices, Minors (3), for in that case he limited the liability of the remainderman to six years, under the 42nd seotion : Bolding T. Lane (4) ; Dickenson v. Teesdale (5). THE MASTER OF THE ROLLS : This is a suit of a very simple character. The Plaintiff claims that a sum of £500, late Irish currency, with interest thereon at 6 per cent., may be declared well charged on the lands of KnockÂanclony and East Skehanna, and that an account may be taken of what is due thereon for principal and interest, and that same may be ordered to be paid to the Plaintiffs, and in default thereof that the said lands, or a competent part thereof, may be sold to discharge same. The facts of the case are as follows :-Robert Delacour the elder, the father of the Defendant James Delacour, was the owner in fee of those two denominations of land prior to 1813, subject to a deed executed on his marriage, and dated the 18th of December, 1788, by which he conveyed the said lands to trustees, subject to a life estate to himself and a jointure for his wife, to the use of all and every the child or children of the marriage, to be divided amongst such children, if more than one, at such time or times, and in such shares or proportion, and with and subject to such charges and incumbrances and limitations over as the said Robert Delacour the elder should, by deed or writing, appoint; and in default of appointment, to be divided amongst all such children, if more than one, equally, as tenants in common. There was issue of the marriage four children, Robert, Mary, James and Hugh. By a deed executed on the 18th of October, 1813, on the marriage of Robert Delaeour, jun., the eldest son of Robert Delacour, Ben., reciting that the latter was seised subject to the uses by the deed of the 18th of December, 1788, declared, he Robert...