Daniel v Freeman

• Jurisdiction: Ireland
• Judgment Date: 09 December 1876
• Date: 09 December 1876
• Court: Rolls Court (Ireland)

Rolls.

DANIEL

and

FREEMAN.

Dearle v. HallENR 3 Russ. 1.

Jones v. Gibbons 9 Ves. 407.

Wiltshire v. RabbitsENR 14 Sim. 76.

Wilmot v. PikeENR 5 Hare, 14-20.

Jones v. JonesENR 8 Sim. 633.

Rooper v. HarrisonENR 2 K. & J. 86.

Lee v. HowlettENR 2 K. & J. 531.

Re Hughes' TrustsENR 2 H. & M. 89.

Rochard v. FultonENR 1 Jo. & Lat. 413; 7 Ir. Eq. R. 131.

Re WardENR 2 J. & H. 191.

Doe d. Guest v. BennettENR 6 Ex. 892.

Donnellan v. O'Neill Ir. R. 5 Eq. 523, 531.

Pickering v. Ilfracombe Railway Co.ELR L. R. 3 C. P. 235.

Briggs v. ChamberlainENR 11 Hare, 69.

Ex parte Taylor Mont. 240, 244.

Toppin v. LomasENR 16 C. B. 145.

Ex parte Smith 2 D. & C. 271.

In re Hickey Ir. R. 10 Eq. 117.

Ex parte VauxELR L. R. 9 Ch. App. 602.

Re Rawbone's TrustENR 3 K. & J. 476.

Ex parte WardELR L. R. 8 Ch. App. 144; 21 Week. Rep. 115.

Smith v. ToppingENR 5 B. & Ad. 674.

Dearle v. HallENR 3 Russ. 1.

In re SketchleyUNK 1 D. & J. 163.

Re Arkwright 2 Mon. Deac. & De Gex, 143.

Bartlett v. BartlettUNK 3 D. & J. 127.

Re Rawbone's TrustsENR 3 K. & J. 476.

Ex parte VauxELR L. R. 9 Ch. App. 602.

Ex parte BondELR L. R. 8 Ch. App. 51.

Ex parte North-Western BankELR L. R. 15 Eq. 73.

Lee v. HowlettENR 2 K. & J. 531.

Re Hughes' TrustsENR 2 H. & M. 89.

Pickering v. Ilfracombe Railway Co.ELR L. R. 3 C. P. 235.

In re Hickey Ir. Rep. 10 Eq. 117.

Heslop v. BakerENRENR 6 Ex. 746; 8 Ex. 411.

Ex parte Heslop 1 D. M. & G. 482.

Ex parte Arkwright 3 Mon. Deac. & De Gex, 143.

Wilmot v. PikeENR 5 Hare, 14.

Wiltshire v. RabbittsENR 14 Sim. 76.

Malcolm v. CharlesworthENR 1 Keen, 63.

Gardiner v. Blesinton 1 Ir. Ch. R. 79, 85.

Loveridge v. CooperENR 3 Russ. 35.

Dearle v. HallENR 3 Russ. 1.

Lee v. HowletENR 2 K. & J. 531.

Re HughesENR 2 H. & M. 89.

Assignment of chose in action — Notice — Bankruptcy of assignor — Doctrine of Dearle v. Hall — Assignment of interest in land — Order or disposition of bankrupt.

Vol.. XL] EQUITY SERIES. 233 subject accordingly to the trusts therein declared concerning the F. C. Court. same, and that the life interest of John Taaffe therein is now 1877. vested in the Plaintiffs on the trusts of the settlement of 1873, and mAxn,ToN that subject thereto this sum will become the property of the JAMES. minor Defendant on his attaining twenty-one years of age. Solicitors for the Plaintiffs : Messrs. Fry 81 Son. Solicitor for the minor Defendant : Mr. Cronhelm. Solicitor for the Defendant John Taaffe : Mr. Fondue. Solicitor for the Defendant James : Mr. Ogle. Solicitors for the Defendant Longbourne : Messrs. Keily cif' Lloyd. DANIEL v. FREEMAN. .Rolls. Assignment of chose in action-Notice-Bankruptcy of assignor-Doctrine of 1876. Dearle v. Hall-Assignment of interest in land-Order or disposition of Nov 4, 7, 8. bankrupt. Dec. 9. Leaseholds were bequeathed to trustees in trust to sell, and out of the proÂÂceeds to invest £3000 in Government Stock, and pay the dividends to F., the wife of E., for life, to her separate use without power of anticipation, and, subject thereto, to pay the principal to the children of F. and E. in such shares as she should appoint, with gifts over in default of appointment to the children of F. and E. living at the testator's death; powers were given to the trustees to sell the Stock and invest the proceeds on private security or in the purchase of land, to be held upon the same trusts as were declared of the Government Stock. At the testator's death, there were three children of F. and E. The trustees sold, and left the £3000 outstanding on a mortgage of the property (which was then held for a term of sixty-two years) executed by the purchaser to them. F. by deed appointed the £3000 in different shares to her three chilÂÂdren, subject to her life estate. The appointees, during F.'s life, assigned to D. the sums appointed to them, together with their respective estates and interest therein, to secure moneys advanced to their father. D. gave no notice of the assignment to the trustees. Two of the appointees became bankrupt in F.'s lifetime. F. died, having had no other children. D. then filed a bill to raise the amount due to him :-Held, 1. That the interests of F.'s children were not interests in lands, but were closes in action within the doctrine of notice as established by Dearle v. _Hall (3 Russ. 1). 2. That the shares of the bankrupts were in their order and disposition with the consent of D. at the time of the bankruptcy, and passed to their assignees in bankruptcy. 234 THE IRISH REPORTS. [I. R. Rolls. Where notice to trustees of an assignment of a chose in action is essential 1876. to complete title as between particular assignees, notice, as a general rule, is equally essential to complete title as against the assignees in bankruptcy of an DANIEL v. assignor. FB.ELIIIN. Re Hickey (L. R. 10 Eq. 117) considered. BILL praying an account of the sum due to the Plaintiff on foot of a derivative mortgage of the 21st of July, 1858, and that same might be declared well charged upon a mortgage of certain lands at Monkstown, in the county of Dublin, dated the 31st of August, 1840. The mortgages are stated verbatim in the judgment. The mortgagees in the mortgage of the 31st of August, 1840, were William Whelan and Maurice Dowling, the trustees in the will of James Barrett, which is also stated in the judgment, and the sum of £3000, which was thereby secured, was money beÂÂqueathed by that will in trust for the assigning parties in the deed of the 21st of July, 1858, viz. Frances Freeman, Anna Maria Kennedy, Joseph Freeman, and Fanny Freeman, Joseph Freeman and Anna Maria Kennedy were adjudicated bankrupts, the former on the 20th of November, 1866, and the latter on the 11th of September, 1866 ; and their assignees, who were Defendants in this suit, by their answers submitted that no notice of the deed of the 21st of July, 1858, was given to the trustees of the will of James Barrett, and that the shares of the bankrupts were, at the time of their bankruptcies, in the order or disposition of the bankrupts respectively, with the consent of the true owner. The Plaintiff, to meet the defences thus set up by the answers, amended the bill by the introduction of the following paragraph (11) : " A memorial of said indenture of the 21st of July, 1858, was on or about the 14th day of August, 1858, duly registered in the office for registering deeds in Ireland, and the Plaintiff submits that inasmuch as an interest in land was conveyed to him by the said indenture by way of security for the said loan of £300, it was not necessary, in order to preserve his priority in respect of said mortgage-debt, that he should give notice of the existence of the said indenture to either of the trustees and execuÂÂtors of the will of the said James Barrett. But even if the Court should be of opinion that such notice was necessary for the purpose Vor... XI.] EQUITY SERIES. 235 aforesaid, the Plaintiff shows that same was in the said month of Rolls. August, 1858, in fact given on his behalf by his solicitor, W. T. 1876. Daniel, to Mr. Laurence Mooney, as solicitor for the said trustees DANIEL INIEL and executors, or the survivor of them." FREEMAN. The evidence given by the Plaintiff of notice was that of his solicitor, William Thomas Daniel, who in his affidavit deposed as follows : " In the early part of the year 1858 I received from Anna Maria Kennedy copies of the following documents, &c. When I asked for the originals of said deeds, and also the original more gage of 31st of August, 1840, I was informed by the said Anna Maria Kennedy and the said Edward Freeman, her father, who was then with her, that Messrs. Mooney & Son had all the papers, as they had been acting for the trustees and executors of said James Barrett. Thereupon, in the early part of the month of July, 1858, I called upon said Messrs. Mooney. I then saw Mr. LauÂÂrence Mooney, one of the partners in said firm. I informed him that I had been referred to him by said Edward Freeman as the soÂÂlicitor acting for the said Very Rev. William Whelan and Maurice Dowling. I told him that the plaintiff in the cause was about making an advance to said Edward Freeman for the advancement of his family, and that said Anna Maria Kennedy, said Joseph FreeÂÂman and Fanny Freeman, were to join in a sub-mortgage of their respective shares and interests of the mortgage of the 31st August, 1840. He, told me he had prepared the said two deeds of the 29th of November, 1843, and had given the copies which. I had so reÂÂceived to said Anna Maria Kennedy. He stated that his firm had acted for the trustees of the will of James Barrett, the testator, after William Barrett in the bill mentioned had left this country. He promised then, and upon two or three other occasions when I called upon him, to procure and hand over to me, upon the comÂÂpletion of the loan then pending, all the original deeds which I would be entitled to. Immediately after the execution of the said deed of the 21st of July, 1858, I again saw the said Laurence Mooney, and asked him if he could give me the deeds, as the several parties had executed the deed of security to my client, and I showed him the said deed. He then informed me that there was a small slim of from £14 to £20 due to him in respect of the preÂÂparation of these deeds. I undertook that such lien should be 236 THE IRISH REPORTS. [I. It. Rolls. discharged if the deeds and documents were handed over to me. 1876. In my presence he directed one of his clerks to have a careful and DANIEL diligent search made for the papers. I called subsequently and FREEMAN. saw said clerk, and was informed by him that the deeds could not be found. Prior to registering the deed of 21st of July, 1858, I again called with the deed and memorial, and saw said Laurence Mooney. I informed him I was about to register it, and...