Connan v O'Connor

• Jurisdiction: Ireland
• Judgment Date: 22 June 1903
• Date: 22 June 1903
• Court: Court of Appeal (Ireland)

Coonan

and

O'Connor.

M. R.

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND.

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1903.

Mortgage — Construction — Equitable assignment — Assignment of future crops — Valuable consideration — Irrevocable appointment of auctioneer to let and manage lands — Bill of sale.

M., who was possessed of a farm at B. in the county of Kildare, was in the habit of employing the defendants, who were auctioneers, to let the grazing and manage the land for her. The defendants sometimes paid in advance the rents and taxes, and when they let the meadows or sold the crops they received the money, and after deducting what was due, they paid the balance to M. M. had deposited with the defendants the title-deeds of the farm by way of equitable mortgage.

In November, 1900, M. applied to the plaintiff for advances to pay off the amount due to the defendants, and also some rent that was due, which the plaintiff agreed to make upon the security of the agreement hereinafter stated, and also upon getting up the title-deeds. On 29th December, 1900, M. signed an agreement, whereby, in consideration of the plaintiff paying for M. £200, she assigned to the plaintiff, as security therefor, the authority to let and manage her farm, for grazing, meadow, or other purpose, and out of the proceeds of said letting, to retain such sums to liquidate the above, or any other sum advanced to M., or paid by the plaintiff on her account; and M. appointed the plaintiff her auctioneer and salesman, to dispose of same at such time and place as he thought best, and to retain the sums advanced out of the proceeds, together with commission and expenses, and hand M. the balance. This agreement to be irrevocable.

The plaintiff paid off the defendants, and paid the rent due. The plaintiff, in January, 1901, advertised the meadows for grazing, but owing to the action of M. the attempt to let them proved abortive, and the grass was allowed to spring into meadow. On the 5th July the plaintiff advertised the meadows for sale, but they were not sold. M. subsequently employed the defendants to auction her meadows, and they were sold on the 16th July. On the 19th July the plaintiff's solicitor wrote to the defendants, informing them of the agreement of the 29th December, 1900, and cautioning them not to pay over the proceeds of the sale to M. Notwithstanding this, the defendants paid over the balance of the money to M., after deducting the expenses of the auction and commission:—

Held (by the Master of the Rolls), that the agreement of the 29th December, 1900, was an equitable mortgage of the land, and that it also conferred upon the plaintiff a specific interest in the crops on the farm, and in the purchase-money thereof when sold, and that the plaintiff was entitled to have the amount of his debt and interest declared well charged upon the farm and crops.

Held (by the Court of Appeal), that the defendant, having had notice of the agreement of the 29th December, 1900, before he paid the balance of the proceeds of the sale to M., was liable to the plaintiff for the amount of the balance.

Held, by Walker, L.J. (agreeing with the Master of the Rolls), that the agreement of the 29th December, 1900, conferred an equitable charge in favour of the plaintiff on the land and growing crops.

The defendant Ellen Molony was possessed of a farm at Ballycorrigan in the county of Kildare, held under the Duke of Leinster, comprising about 60 acres, which she was in the habit of letting for grazing or meadowing by the season. The plaintiff, Edward Coonan, was an auctioneer at Kilcock in the same county, and the defendant O'Connor was also an auctioneer. O'Connor had done business for her for some years prior to the year 1900, and he had advanced her money to the extent of £120, for which he held as security the title-deeds of the farm. In November, 1900, she applied to the plaintiff for an advance, which he agreed to make on getting the securities which O'Connor held, together with an authority to let her farm until he was paid. On the 29th December, 1900, she signed the following agreement with Coonan:—

“In consideration of your advancing me, or paying on my account, the sum of £200, receipt of which I hereby acknowledge, I hereby assign to you, as security therefor, the authority to let and manage my farm for grazing, meadow, or other purpose, and out of the proceeds of said letting, to retain such sum or sums to liquidate the above, or any other sum advanced to me, or paid by you on my account; and I appoint you my auctioneer and salesman, to dispose of same at such time and place you think best, and to retain any such sum as you have advanced me out of the proceeds thereof, together with your usual commission and expenses, and hand me the balance; and if any deficiency occurs, I agree to make good same before November 1st, 1901; and this agreement is irrevocable by me.

“Ellen Molony.”

In pursuance of this agreement Coonan paid £125 to O'Connor, and he paid the rent due on the farm, and also the taxes, making a total advance to Miss Molony of over £200.

After the plaintiff got the security he advertised the farm for grazing, to be let on the 11th January, with the approval of Miss Molony; but on the 11th January Miss Molony stated she would not let any of the land unless she let it all, and so the lettings fell through. Between January and July the lands were allowed to run in meadow, instead of being grazed. The meadows were advertised by the plaintiff to be sold on the 5th July. Several bidders attended, but owing to the action of Miss Molony, who ordered them all off the farm, the sale proved abortive.

On the 8th July, 1901, the defendant O'Connor wrote to Miss Molony stating that he had an auction at Laraghbryan — a place in the county of Kildare near Miss Molony's lands—on the 16th July, and that as she had not sold her meadows she might like to try and sell them on that day. In a conversation with Coonan, Miss Molony showed him O'Connor's letter of the 8th July, and on the 11th July, 1901, Coonan wrote to O'Connor cautioning him against interfering in any way with the meadows on the land, or he would take proceedings to prevent him.

On receipt of this letter O'Connor wrote to Miss Molony on the 12th July, enclosing a copy of Coonan's letter, and asking Miss Molony if she had power to deal with her land, and at an interview between O'Connor and Miss Molony subsequently she stated that she had absolute control over her lands. On the 16th July Miss Molony gave O'Connor instructions in writing to let her meadows on foot to the best bidders, and the auction was held on the same day and realized £128 14s. 6d. On the 19th July the plaintiff's solicitors wrote to O'Connor stating that by an irrevocable appointment and agreement, dated 29th December, 1900, Miss Molony had charged her farm and farm produce in favour of the plaintiff for £261 5s., and appointed him to manage, auction, and sell the grazing, meadowing, &c., and apply the proceeds to repay himself the amount of the advance. They required O'Connor to hand over the money realized, and cautioned him against paying the balance to Miss Molony out of the proceeds derived from the auction. The defendant O'Connor deducted the expenses of the auction, paid the outgoings on the lands, and paid the balance to Miss Molony. On the 24th July, 1901, Coonan brought an action against O'Connor and Miss Molony for an injunction to restrain them from letting or making grazing lettings of the land, or from interfering in the management of the farm, and for an injunction to restrain the defendant O'Connor (who traded as “Patrick O'Connor & Son”) from paying the money realized to Miss Molony, and also for a declaration that the sum of £280 18s. 6d. might be declared well charged on the farm and on the rents and profits thereof, and that the amount might be raised by a sale, or by the appointment of a receiver.

Miss Molony did not defend the action. The defendant O'Connor filed a defence in which he denied the legal validity of the agreement of the 29th December, 1900. He further pleaded that the first intimation which he had of any claim of the plaintiff in respect of the lands was on the 20th July, 1901, when he received from the plaintiff's solicitors the letter of the 19th July, after the auction. He pleaded that Miss Molony stated to him that she had absolute control over her lands, and relying on that statement, and acting on her instructions, he held the auction, which was conducted bona fide, and in the ordinary course of business.

Blood, K.C., and H. C. Geoghegan, for the plaintiff.

Campbell, S.-G., Matheson, K.C., and D. J. O'Brien, for the defendant O'Connor.

The arguments are reported infra on the hearing in the Court of Appeal.

Blood, K.C., and H. C. Geoghegan, for the plaintiff.

Campbell, S.-G., Matheson, K.C., and D. J. O'Brien, for the defendant O'Connor.

The Master of the Rolls:—

In this case Edward Coonan is plaintiff, and the defendants are Patrick O'Connor & Son, and Ellen Molony. Ellen Molony has filed no defence, and the plaintiff is entitled to judgment against her. The real defendant in the case is O'Connor, and the plaintiff's claim against him is, in the first place, for an injunction (which is now out of the case on the evidence), and secondly, for an account “of all moneys received from any sale, auction, letting, or other dealing with the said farm or with the produce thereof since the 29th December, 1900.” It (3) asks for payment to the plaintiff of any moneys to which he may be entitled under an agreement dated 29th December, 1900, and (4) an inquiry as to damages for breach of this agreement. It also asks that the sum of £280 18s. 6d. may be declared well charged on the farm of Ballycorrigan, and on the rents and profits thereof, and that the amount may be raised by sale of the...