Cleary v Fitzgerald

• Jurisdiction: Ireland
• Judgment Date: 14 February 1881
• Date: 14 February 1881
• Court: Chancery Division (Ireland)

Appeal.

Before MAY, C. J., and DEASY, and FITZ GIBBON, L.JJ.

CLEARY

and

FITZGERALD

Re Burke's Estate 16 Ir. Ch. R. 129.

Sexton v. M'Grath I. R. 6 Eq. 381.

Chute v. Lindesay Ibid. 385.

Tottenham's Estate I. R. 3 Eq. 547.

Marsden v. Kent 5 Ch. Div. 598.

Fenwick v. GreenwellENR 16 Beav. 412, 420.

Lester v. Lester 6 Ir. Ch. R. 513.

Macnamara v. Carey I. R. 1 Eq. 9.

Luther v. Bianconi 10 Ir. Ch. R. 194.

Maitland v. BatemanENR 16 Sim. 233.

Ex parte Geaves, In re Strahan 8 D. M. & G. 291, 309.

Alexander v. Alexander 12 Ir. Ch. R. 1, 20.

Gardiner v. Blesinton 1 Ir. Ch. R. 73.

Gubbins v. GubbinsUNK 1 Dr. & Wal. 161 n.

Ennis v. Smith Jon. & Car. 419.

Reilly v. Garnett I. R. 7 Eq. 17, 25.

Sumpter v. CopperENR 2 B. & Ad. 223.

Re Hamilton's Estate 9 Ir. Ch. R. 512.

M'Kinney's Estate I. R. 6 Eq. 445.

Reilly v. Garnett I. R. 7 Eq. 26.

Rice v. O'Connor 12 Ir. Ch. R. 424.

Copland v. DaviesELR L. R. 5 H. L. 358, 383.

Re Stephen's Estate I. R. 10 Eq. 282.

O'Connor v. StephensUNK 13 Ir. C. L. R. 63.

In re Olden 9 Ir. Jur. (N. S.) 297.

Phillips v. PhillipsUNK 4 D. F. & J. 208.

Newton v. NewtonELR L. R. 4 Ch. App. 143.

Penny v. WattsENR 2 De G. & Sm. 501, 521.

Colyer v. FinchENR 5 H. L. C. 905.

The Agra Bank v. BarryELR L. R. 7 H. L. 135.

Foster v. CockerellENR 3 Cl. & Fin. 456.

Lyster v. BurroughsUNK 1 Dr. & Wal. 173.

Stack v. Royse 12 Ir. Ch. R. 246, affirmed on appeal, 13 Ir. Ch. R. 213.

Kevan v. Crawford 6 Ch. Div. 29.

Vanderzee v. WillesENR 3 Bro. C. C. 21.

In re MedeweENR 26 Beav. 588.

Murray v. PinkettENR 12 Cl. & Fin. 764.

Neve v. PennellENR 2 H. & M. 170.

Battersby v. Rochfort 8 Ir. Eq. R. 284, 296.

Gardiner v. Blesinton 1 Ir. Ch. R. 64.

Delacour v. Freeman 2 Ir. Ch. R. 633.

Beckett v. CordleyENR 1 Bro. C. C. 353.

Mackreth v. Symmons 15 Ves. 329.

Manningford v. TolemanENR 1 Coll. 670.

Stackhouse v. Countess of JerseyENR 1 J. & H. 721.

Cory v. EyreUNK 1 D. J. & S. 149, 167.

Metcalfe v. The Archishop of YorkENR 6 Sim. 224.

Creed v. Carey 7 Ir. Ch. R. 295.

Marshall v. HolroydENR 10 H. L. C. 191.

Re WardENR 31 Beav. 1.

Edwards v. M'Leay G. Cooper's R. 308.

Sankey v. Alexander I. R. 9 Eq. 259.

Dillon v. Costello 1 Jones, 410.

Child v. Stenning 5 Ch. Div. 695.

Cave v. Cave 15 Ch. Div. 639.

Walsh's Estate I. R. 1 Eq. 399, 410.

Gardiner v. Blesinton 1 Ir. Ch. R. 72.

Creed v. Carey 7 Ir. Ch. R. 298.

Gubbins v. GubbinsUNK 1 Dr. & Wal. 161, n.

Reilly v. Garnett I. R. 7 Eq. 1.

In re M'Kinney's Estate I. R. 6 Eq. 445.

Re Stephens' Estate I. R. 10 Eq. 282.

In re Hamilton 9 Ir. Ch. R. 512, 521.

Copland v. DavisELR L. R. 5 H. L. 365, 375, 381.

Rice v. RiceENR 2 Drew. 1.

Brandao v. BarnettENR 12 Cl. & Fin. 787, 806.

Jones v. PeppercorneENR 1 Johns. 430, 446.

Re Williams I. R. 3 Eq. 346.

In re European Bank, Agra Bank ClaimELR L. R. 8 Ch. App. 41.

Creed v. Carey 7 Ir. Ch. R. 296.

Gardiner v. Blesinton 1 Ir. Ch. R. 88.

Lyster v. BurroughsUNK 1 Dr. & Wal. 149.

White v. Anderson 1 Ir. Ch. R. 419.

Stack v. Royse 12 Ir. Ch. R. 262.

Metcalfe v. Archbishop of YorkENR 6 Sim. 224.

Carlisle v. WhaleyELR L. R. 2 H. L. 391.

Sumpter v. CooperENR 2 B. & Ad. 226.

Lyster v. BurroughsUNK 1 Dr. & Wal. 160.

Gubbins v. Gubbins Ibid. 161 n.

Lyster v. Burroughs Ibid. 149.

Ennis v. Smith Jo. & Car. 417.

Registration of deed — 6 Anne (Ir.), c. 2, ss. 4, 5 — Deed creating equitable charge on after-acquired lands — Priority — Trustee — Breach of trust.

VoL. VII.] CHANCERY DIVISION. 229 CLEARY v. FITZGERALD (1). Appeal. 1880. Registration of deed-6 Anne (Ir.), c. 2, ss. 4, 5-Deed creating equitable charge on after-acquired lands-Priority-Trustee-Breach of trust. Dec.1,2, 3, 6 7 In order to bring a conveyance within the operation of section 4 of the Irish 1881. Registry Act (6 Anne c. 2), there must be a deed or instrument executed by a Feb. 14. person who possesses an interest in some lands, then capable of being described, and who, by that deed or instrument, conveys or makes some disposition of such interest ; and the Act does not apply to cases in which a settlor purports to charge any lands over which he may afterwards acquire a disposing power. M., upon his marriage in 1838, executed a deed by which he covenanted with F. and P. (trustees) that the sum of £5000, with interest from his decease, should be, and the same was thereby, charged upon all the estate, real and perÂsonal, of which he then was, or thereafter might become, seised or possessed ; and further that, in case he should afterwards acquire real, freehold or other property, he, his heirs, executors, administrators or assigns, would do and exeÂcute all such further acts, writings or conveyances for effectually charging such property with the sum of £5000 as the trustees should require ; and it was thereby declared that the trustees and the survivor of them should, at the end of six months after his death, call in such sum of £5000, and hold the same upon the trusts therein mentioned. The deed was registered in October, 1838. In 1853 M. purchased the C. estate in the Lncumbered Estates Court. He created several incumbrances upon it, and in 1865 sold it to K., subject to an outstanding mortgage. K. was a bona fide purchaser for value, without notice of the settlement of 1838, and the conveyance to him was duly registered. A. portion of the purchase-money and, as it was alleged, other moneys of M., came to the hands of the trustee F., and were applied in part payment of admitted debts and obligations of M. to him. M. died in 1878, without assets to satisfy his covenant. In a suit by a cestui que trust, entitled under the deed of 1838 to the sum of £5000 therein mentioned, seeking that it might be declared. (a) that the sum remained a valid charge on the C. estate, and (b) that F. (whose co-trustee P. had died in 1856, without assets available for the PlainÂtiff's demand), was answerable for any loss in respect thereof :- Held, on appeal (varying the judgment of Chatterton, V. C.) : 1. That the registration of the settlement of 1838 was invalid as to the lands of C., and therefore did not give it priority over the purchase-deed of 1865. 2. That an equitable charge under the settlement attached upon the lands (1) Before MAY, C. J., and DEASY, and Frrz GIBBON, L.JJ. VOL. VII. 230 LAW REPORTS (IRELAND). [L. R. I. Appeal. of* C. immediately on their purchase by M., but that such equity was not 1880. enforcible against them in the hands of K. 3. That the settlement, not being rendered incapable of effectual registra- CLEARY v. tion as to the lands of C. by any defect of form in itself, but merely by the fact FITZGEEALD. of M.'s having at the time no interest in those lands, was not excluded from the operation of the Registry Acts, so as to come within the authorities as to rights conferred by acts in pais in such cases. Per MAY, C. J. :-Whether, independently of the Registry Acts, the plea of purchaser for value, without notice, though only of an equity of redemption, afforded K. a sufficient defence, qucere. 4. That F. was guilty of a breach of trust in not enforcing M.'s covenant while the latter was owner of the lands of C., and that F.'s assets were, accordÂingly, liable to make good the sum of £5000, with interest from the date of M.'s death. The supposed decision in Gubbins v. Gubbins (1 Dr. & Wal. 161 n), as to registration, overruled. In re Stephens' Estate (I. R. 10 Eq. 282) observed upon by FITZ GranoN, L. J. APPEAL by the Defendant Thomas Fitzgerald from the Vice-Chancellor's judgment of the 16th of June, 1880, declaring, in substance, that a charge of £5000 created by settlement of the 20th of June, 1838, executed on the marriage of the Plaintiff's parents, with interest thereon from the date of the death of her late father Denis Moylan, was a valid and subsisting charge upon the lands of Cuddagh; that the sum of £2042 15s. 6d., which came to the hands of the same Defendant's testator David Fitzgerald, 'out of the purchase-money of the said lands paid by the Defendant WilÂliam Miller Kirk, was primarily liable to satisfy the said sum of £5000, and. was a debt due by David Fitzgerald, and payable out of his assets ; and that such portion (if any) of the said sum of £5000 as should not be payable and paid out of such assets was payable out of the lands of Cuddagh. There was also an appeal by the Defendant William M. Kirk, seeking to have the same judgment varied by omitting so much thereof as declared the charge of £5000 with interest to be a valid charge upon the lands of Cuddagh; and also by omitting so much thereof as declared that the £5000 was secondarily payable out of the same lands. The hearing below is reported 5 L. R. Ir. 351, where the facts are fully stated. VOL. VII.] CHANCERY DIVISION. 231 Mr. P. F. White, Q. C. (with him Mr; S. Walker, Q. C., and Appeal. Mr. .David Fitzgerald), for the Appellant Thomas Fitzgerald :- 1880. There was no breach of trust causing loss to the Plaintiff brought home to Mr. Fitzgerald, and therefore the claim should be dismissed; but even if we fail in establishing this proposition, the utmost relief that could be obtained by the Plaintiff at the present stage would be an inquiry as to whether or not there was a breach of trust and consequent loss. The charge against the deceased trustee is that having already no security for the £5000, he failed to obtain a collateral security for it. We conÂtend that after the deed of 1853, the equitable charge (which existed only in equity) was destroyed by the operation of the statuÂtory conveyance ; and, if that be so, the question resolves itself into one whether David Fitzgerald was guilty of any default. In Re Burke's Estate (1) an Incumbered Estates Court conveyance was held to have discharged the purchaser from previous equities existing against him in respect of the lands ; this case does not appear to have been cited in Sexton v. 1113...