Creed v Creed

JurisdictionIreland
JudgeBarton, J.
Judgment Date12 November 1912
CourtChancery Division (Ireland)
Date12 November 1912
Docket Number(1911. No. 650).
Creed
and
Creed.

Barton, J.

(1911. No. 650).

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.

1913.

Practice — No title at date of issue of writ — Subsequent acquirement of title — Amendment of writ.

Held, that A B's application must be refused, as at the date of the issue of the writ she had no title to sue.

SUMMONS, on behalf of the plaintiff, for an order that the title of the action might be amended by describing the plaintiff as “Mary Creed, administratrix with the will annexed of John Creed, deceased,” instead of “Mary Creed, administratrix of John Creed, deceased,” and that the statement of claim might be amended by pleading that the said John Creed made a will, and that administration with the said will annexed was granted to the plaintiff, and that she sued as such administratrix.

The facts were as follows:—The plaintiff commenced an action in the Chancery Division by writ dated 10th August, 1911, claiming a declaration that a certain document dated 26th May, 1900, and made between John Creed of the one part, and Jeremiah Creed of the other part, which purported to be an absolute assignment of certain lands, was in reality a mortgage to secure the payment of certain moneys due by the said John Creed to the defendant, and for an account of the amount due thereon, and of the rents and profits of the lands received by the defendant, and for a reconveyance, if it were found that all sums so due had been received. The defendant had entered into possession of the lands on the execution of the assignment, and had so continued till the date of the summons.

The said John Creed died on the 24th April, 1906, and his widow, the plaintiff, believing that he died intestate, took out administration intestate to him on 20th July, 1911, and on 10th August, 1911, issued the writ in the action as such administration. A statement of claim was delivered, and the defence filed in reply pleaded inter alia that the deceased made a will, dated 19th February, 1898, whereof he appointed executors.

Jeremiah Creed, the defendant, and Daniel Creed, the executors appointed thereby, not applying for probate, the plaintiff obtained administration with the said will annexed on 16th September, 1912, the former grant to her being recalled, and now sought to amend her pleadings in accordance with these facts.

J. F. Moriarty, for the plaintiff:—

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