Cooper v Cooper. Ellard v Cooper
| Jurisdiction | Ireland |
| Judgment Date | 06 November 1854 |
| Date | 06 November 1854 |
| Court | High Court of Chancery (Ireland) |
Chancery.
Cann v. CannENR 3 Sim. 447.
Hackett v. DonnellyUNK 1 Ir. Eq. Rep. 231.
Dawson v. Bell 3 Ir. Law Rep. 140.
Thomas v. PowellENR 2 Cox, 394.
Cator v. BolingbrokeENR 1 Bro. C. C. 300.
Bessonett v. RobinsENR Sau. & Sc. 142.
Taylor v. GormanUNK 4 Ir. Eq. Rep. 550.
Gillespie v. AlexanderENR 3 Russ. 130.
Greig v. Somerville 1 R. & Myl. 338.
Maynard v. Mosely 3 Swan. 651.
Bree v. Holbeache Doug. 654.
Thomas v. PowellENR 2 Cox, 394.
Cann v. CannENR 3 Sim. 447.
Taylor v. GormanUNK 4 Ir. Eq. Rep. 550.
Hackett v. DonnellyUNK 1 Ir. Eq. Rep. 231.
Johnson v. ReardonUNK 3 Ir. Eq. Rep. 200.
M'Cann v. O'Ferrall 1 Hog. 137.
Smith v. NelsonENR 2 Sim. & Stu. 557.
CHANCERY REPORTS. 75 1854. Chancery. COOPER v. COOPER. ELLARD v. COOPER. Tins was a motion on behalf of the Rev. Edmund Nugent, personal representative and devisee of John Wills, deceased, the purchaser in the first cause, of a portion of the lands of Kinsealy. The tenor of the motion was, that the Rolls order, bearing date the 29th of June, might be varied, and the said Edmund Nugent declared entitled to compensation as against the fund in Court to the credit of the second cause, for one acre and twenty-six and a-half perches of the lands of Kinsealy, from which the said Edmund Nugent had been evicted by title paramount, and that it might be referred to the Master to inquire and report to what amount of compensation the said Edmund Nugent was entitled by reason of the said evicÂÂtion.; and also that he might be repaid the costs of defending the action in which such portion of the lands was recovered from him, and the costs paid by him to the successful party in the ejectment. Cooper v. Cooper was a suit instituted in the Equity Exchequer, against Austin Cooper, by an equitable mortgagee, to realise the amount of his security out of the lands of Kinsealy. The final decree in that cause directed the sale of the said lands, or of a competent part thereof; and a portion of the said lands having been set up for sale, Mr. Wills became the purchaser of such portion for The cause of C. v. C. was instituted by the holder of an incnmbrance puisne to that of the plaintiff in C. v. C., and sought a sale of lands which had been subject to the charge of the plaintiff in the first suit. The whole of the purchase-money in C. v. C. had been distributed, but a fund arising from lands subject to the demand of the plaintiff in that suit had been transferred to E. v. C. Held, that this fund might be applied to compensate the purchaser for the loss sustained by his eviction. A purchaser under the Court may, in some circumstances, insist on compensaÂÂtion, even after conveyance executed and possession taken. A purchaser under the Court is not confined to his own purchase-money as secuÂÂrity for any compensation to which he may be entitled, but may obtain it from a fund produced by other lands, which had been subject to a demand discharged out of his purchase-money. 76 CHANCERY REPORTS. the sum of 19,200. By an indenture of the 6th of January 1848, this portion was duly conveyed to him. The conveyance to Mr. Wills set out the lands as "containing 388 acres, as particuÂÂlarly described and delineated in and by a map or terchart on the margin of said indenture." Mr. Wills died in June 1853, having devised all the residue of his estate, real and personal (of which Kinsealy was a part), to four persons as trustees and executors ; of these gentlemen, Mr. Nugent alone acted in the trusts of the will. Shortly after the death of Mr. Wills, an ejectment was brought by the Ecclesiastical CommisÂÂsioners, as owners of lands conterminous with Kinsealy, for one acre, two roods and fifteen perches of the lands conveyed to him. Mr. Nugent defended the action for one acre and twenty-six and. a-half perches of the said lands, being a portion of the lands as delineated on the said map, and conveyed by the said indenture, and without which the lands would not have made up the quantity which the said indenture professed to convey. The plaintiffs in that ejectment succeeded in recovering possession of this portion of ground from Mr. Nugent, who was compelled to pay costs to a very large amount. In point of fact it appeared that Austin Cooper had taken a sub-lease of this small piece of ground from a tenant of the Ecclesiastical Commissioners, and that having been held. along with the lands of Kinsealy, it was believed to form a part thereof, and was sold under that belief. In June 1844, the suit of Ellard v. Cooper was instituted, also in the Equity Exchequer, by simple contract creditors of Austin Cooper, the mortgagor in the first cause, on behalf of themselves and all others of his simple contract creditors, praying for the benefit of the first suit, and for a sale of the said lands. This suit, after an abatement and reviver, was transferred to the Court of Chancery by the statute, an order for a sale of the residue of the lands of Kinsealy was made therein, and the receiver in the cause of Cooper v. Cooper was extended to Ellard v. Cooper. The entire purchase-money of the land conveyed to Mr. Wills was allocated and paid out in Cooper v. Cooper. The receiver in Cooper v. Cooper had collected a considerable amount of rent from the residue of the CHANCERY REPORTS. 77 lands of Kinsealy, and the fund arising from this was, by an order 1854. :Chancery. of the Court, dated the 5th of May 1851, transferred to the cause COOPER of Ellard v. Cooper, and thus remained at the period of the v. motion. When the original motion came before the Master of the COOPER. Rolls, on the 26th of June 1854, his Honour made an order, refer- Statement. ring it to the Master to inquire and report whether the whole, or any and what part of the sums of cash and stock transferred from Cooper v. Cooper to Ellard v. Cooper was part of the purchase-money of the lands of Kinsealy ; and in case he should find that the whole...
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