Beresford v Chambers

• Jurisdiction: Ireland
• Judgment Date: 26 January 1843
• Date: 26 January 1843
• Court: Revenue Exchequer (Ireland)

Beresford

and

Chambers.

Equity Exch.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

G. devised certain lands to A., subject to the payment of his debts; and reciting that he had obtained a decree for payment of a large sum of money, directed that money, when recovered, to be the primary fund for payment of his debts; and appointed A. and J. his executors.

Before the primary fund was available, the executors. being pressed for the payment of a debt of the testator, joined in mortgaging the lands devised to A., and executed a bond, on which a joint judgment was afterwards entered up against them. The money so raised was applied partly in payment of the testator's debt, and partly in obtaining a renewal of the lease of the mortgaged lards. A., out of his own monies, afterwards paid off the mortgage, and took an assignment of it and of the judgment, to a trustee.

Held, that he could not rely on the judgment as a subsisting encumbrance affecting the estate of J., notwithstanding that there was an unsettled account of the assets of G. between him and J., on which he alleged that J. was indebted to the estate in a sum larger than the amount of the judgment.

A Sale of the lands in the pleadings in this cause mentioned, having been had under the decree, the purchaser objected that a judgment of Easter Term 1829, obtained by William Kerr, against the defendant John Chambers and A. G. Cary, executors of George Cary, deceased, jointly and not severally, for the penal sum of £4000, late currency, was an encumbrance affecting the lands, and ought to be satisfied. The persons in whom that judgment was vested, Messrs. Radcliffe and Rotton, not being parties to the cause, and not having proved their demand on foot of it under the decree, the plaintiff called on them, by notice, to satisfy the judgment on the roll, which they declined to do, alleging that they held it in trust for A. G. Cary, and that there was a sum due on foot of it. It was afterwards arranged that Messrs. Radcliffe and Rotton should file a charge under the decree in this cause, and obtain a separate report on foot of this judgment. The Remembrancer having made his report, dated the 21st of January 1842, the matter thereof was brought under the consideration of the Court on the 14th of February 1842, when the Court was pleased to refer the report back to the Remembrancer, with a direction that he do state all the circumstances relative to the matter. Accordingly by his second report, dated the 12th of May 1842, the Remembrancer found that George Cary being seized for lives renewable for ever of the lands of Carrowkeel and other lands, by his will dated the 5th of February 1818, duly executed, devised said lands to his son A. G. Cary, his heirs, executors, administrators and assigns, subject nevertheless to the payment of the debts, legacies and charges in his will in that behalf mentioned: and after reciting that, in the cause of M'Intyre v. Cary, in Chancery, he had obtained a decree against the defendant for the payment of a considerable sum of money, he directed that all his just debts should, in the first place, be paid out of the sum decreed to him in that cause, when the same should be recovered; but in case that money should not be available when wanted for the payment of his debts, then he directed that the monies requisite should be raised by his executors out of the lands devised to his son A. G. Carey, by sale or mortgage; and that the interest on such of his debts as bore interest should, in the mean time and until the same should be discharged, be paid out of the rents and profits of the same estates: and he appointed his sons A. G. Cary, Tristram Cary, and his son-in-law the defendant John Chambers, his executors. George Cary...