Carey v Doyne

• Jurisdiction: Ireland
• Judgment Date: 23 May 1856
• Date: 23 May 1856
• Court: Rolls Court (Ireland)

Rolls.

CAREY

and

DOYNE.

Ashton v. DaltonENR 2 Coll. 565.

Ex parte Haigh 11 Ves. 403.

Tubb v. RoeENR 4 Taunt. 886.

Parker v. Housfield 2 M. & K. 421.

Mellor v. WoodsENR 1 Keen, 16.

Dowell v. BurkeUNK 9 Ir. Eq. Rep. 83.

Incorporated Society v. Richards 1 Dr. & War. 258.

De Beauxoir v. OwenENR 5 Exch. 166.

Arnott v. RedfernENR 3 Bing. 353.

Newton v. Aldous 2 M. & K. 421.

Marshall v. PooleENR 13 East, 98.

Jenkins v. PerryENR 3 Y. & C., Exch., 178.

Shipton v. Tyrrell Finch, 286.

De Havilland v. BowerbankENR 1 Camp. 50.

Earl of Bath v. Earl of Bradford 2 Ves. 586.

Simpson v. O'Sullivan 3 Dr. & War. 446.

Creuze v. Hunter 2 Ves. jun. 159.

Malone v. Gerahty 3 Dr. & War. 239.

Prince v. HeylanENR 1 Atk. 493.

Moneypenny v. BristowENR 2 Russ. & M. 117.

Walsh v. Walsh 1 Jo. & Car. 52.

Drough v. JonesUNK 2 Ir. Eq. Rep. 303.

Mannix v. DrinanUNK 3 Ir. Eq. Rep. 119.

Costello v. Burke 2 Jones & L. 665.

Cummins v. AdamsUNK 2 Ir. Eq. Rep. 393.

Kelly v. RutledgeUNK 8 Ir. Eq. Rep. 378.

Ashton v. Dalton 2 Coll. Ch. C. 566.

Ex parte Haigh 11. Ves. 403.

Lowndes v. Collins 17 Ves. 28.

Colton v. BraghENR 15 East, 223.

In re BurgessENR 8 Taun. 660.

Cameron v. SmithENR 2 B. & Ald. 308.

Parte Pollard 1 M. D. & De G. 272.

Parker v. Housefield 2 M. & K. 421.

Parker v. Housefield 2 M. & K. 419.

104 CHANCERY REPORTS. 1856. Rolls. SMITH v. SMITH.-Order. created by the deed of the 1st of May 1813, or in the name of such other person as she may be advised ; and also to enable the petitioner, prior to bringing such ejectÂment, to obtain a mortgage for the arrears of the rentcharge claimed by the petitioner to be due to her from the 1st of November 1834 to the 1st of November 1840. The ejectment to be brought to enable the petitioner to prove, first, that there is no sufficient distress on the premises ; secondly, if there be no sufficient distress, that an ejectÂment will lie on the cl4use of re-entry in the said deed of the 1st of May 1813, to recover an arrear of rentcharge, due the 1st of November 1840, there being no trust term vested in the trustees of the rentcharge to secure same ; thirdly, to enable the petitioner, if a mortgage shall be executed to her by the said John Steele for the said arrears, to insist that the power to mortgage could be duly and legally exercised where the arrear of rentcharge claimed is due more than six years ago : and reserve furÂther order and the question of costs. Rolls Motion Book, 383,f. 7. CAREY v.: DOYNE. May 23. If deeds are BURY DOYNE, being seised of the lands of Derryfore for his own deposited by way of equit- life, with' reversion in fee on failure of issue by his wife Caroline able mortgage to secure a Done and and being indebted to the petitioner in the sum of £830, simple con- tract debt, the for moneys which he had applied to his own use, on the 14th debt bears in terest from the date of the deposit, and by reason of it, though there be no express contract that the demand should bear interest. Ex parte Haigh (11 Ves.) considered. A. respondent, in a cause petition referred under the 15th section of the Court of Chancery (Ireland) Regulation Act 1850, cannot have the benefit of the Statute of Limitations, 3 644 W. 4, c. 27; a. 42, unless he expressly relies on it by his discharge. CHANCERY REPO1*S. 105 of October 1845, deposited his title deeds with the respondent 1856. Alexander Curry, as trustee for the petitioner, and wrote a 'letter, Rolls which is stated in the judgment, authorising 'him to retain the title CAREY v. deeds to secure the £830. It was then intended that the lands DOYNE. should be soldoimmediately. They were not sold, and in 1853 the Statement. petitioner applied for a formal deed df mortgage, without success. The respondent Bury Dune having presented a petition to the Incumbered Estates Court for sale of the lands, the petition in this matter was filed, praying the usual accounts, and the appointÂment of a receiver to pay interest at £5 per cent. on the £830, from. the 24th of October 1845. The case was referred to the Master, under the 15th section of the Court of Chancery (Ireland) Regulation -Act 1850, and the Master, by a decretal order of the 26th of January 1856, declared that the deposit and letter conÂstituted a valid equitable mortgage of the said lands ; that the, principal sum of £830, and 1415 for ten years' interest, was due, and that a receiver should be appointed over the lands, to pay the interest and the costs of the petitioner. The respondent appealed from the order, on the ground that no interest was payable, or that the Master should only have allowed it for six years previous to filing the petition. The statements in the petition and disÂcharge, which did not set up the Statute of Limitations, are stated more at length in his Honor's judgment. Mr. Hamilton Smythe and Mr. Wynne, in support of the appeal, argued-First, that the original debt, being a simple contract debt, would not have borne interest, unless a notice had been served, under the 3 & 4 Vic., c. 105, apprising the debtor that, if not paid, interest would be charged on it : the debt was stated in the petition as a simple contract debt, and not a debt by reason of a breach of trust. Secondly, that a deposit of title deeds would not of itself, independently of a contract to pay interest, entitle the creditor to it : Ashton v. Dalton (a); Ex parte Haigh (b); Argument. (a) 2 Coll. 565. (b) 11Ves. VOL. 5. 14 order was wrong in allowing ten years' interest, as there was no v. DorNE. prior creditor in receipt of the rents within a year of the filing of the petition ; and the discharge, though it did not expressly Argument. set up the Statute of Limitations (which it is not necessary to do when the question is as to the amount of interest), raised the question that no interest was due : Dowell v. Burke (d); InÂcorporated Society v. Richards (e); De Beauvoir v. Owen (f). Mr. Lefroy and Mr. Robert R. Warren, in support of the deÂcretal order, argued-First, that the debt arose on a breach of trust, and of itself bore interest : Arnott v. Redfern (g); Newton v. Aldous (h); Marshall v. Poole (0 ; Jenkins v. Perry (k). Secondly, that the deposit of the deeds gave a right to interest, as it made the debt a charge on the land ; a power to charge lands with a particular sum authorised the donee to charge interest : 1 Sug. on Powers, p. 515 ; Shipton v. Tyrrell (l); De Havilland v. Bowerbank (m); Earl of Bath v. Earl of BradÂford (n) ; Simpson v. O'Sullivan (o); Creuze v. Hunter (p); the deposit gave the creditor all the legal rights of a mortÂgagee : Mellor v. Woods (q); Malone v. Gerahty (r); Seton on Decrees, pp. 211, 212, 213, 214. Thirdly, that the invaÂriable rule of the Court was, that the Statute of Limitations, could not be relied on, unless it was pleaded at the earliest opÂportunity, and that the discharge, which was the only pleading in a cause petition matter referred to the Master under the 15th section of the Court of Chancery (Ireland) Regulation Act 1850, (a) 4 Taunt. 886. (b) 2 M. & K. 421. (c) 1 Keen, 16. (d) 9 Ir. Eq. Rep. 83. (e) 1 Dr. & War. 258. (f) 5 Exch. 166. (g) 3 Bing. 353. (7) 2 M. & K. 421. (i) 13 East, 98. (k) 3 Y. & C., Exch., 178. (I) Finch, 286. (m) 1 Camp. 50. (n) 2 Ves. 586. (o) 3 Dr. & War. 446. (p) 2 Ves. jun. 159. (q) 1 Keen, 16, (r) 3 Dr. & War. 239.. CHANCERY REPORTS. 107 did not set up the...