DREW v LORD NORBURY. [Chancery.]

• Jurisdiction: Ireland
• Judgment Date: 12 February 1846
• Date: 12 February 1846
• Court: Chancery Division (Ireland)

Chancery.

DREW

and

LORD NORBURY.

Winchester v. Paine 11 Ves. 194.

Gaskell v. Durdir 2 Ball. & Be. 169.

Martin v. Stiles 11 Ves. 194.

Faussett v. Carpenter 2 Dow. & Cl. 232.

Chandos v. Brownlow 2 Ridgw. P. C. 345.

Bushell v. Bushell 1 Sch. & Lef. 90.

Latouche v. Dunsany 1 Sch. & Lef. 137.

Underwood v. Courtown 2 Sch. & Lef. 40, 66.

Daly v. KellyENR 4 Dow P. C. 430, 436.

Eyre v. Dolphin 2 B. & Bea. 290, 300.

Stuart v. Ferguson Hayes, 452, 471.

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

Thompson v. Simpson 1 Dru. & War. 459.

Warburton v. Loveland, Lessee of IvieENR 6 Bli. N. S. 1; S. C. 2 Dow. & Cl. 480.

Shenton v. Corbally 1 Hog. 403.

Burrel's caseUNK 6 Rep. 72.

Buckle v. Mitchell 18 Ves. 100.

AnonymousENR 1 Vern. 318.

Humble v. ShoreENR 3 Hare, 119.

Coppin v. GrayENR 1 Y. & C. C. C. 205; see p. 208.

Boyd v. HigginsonUNK 5 Ir. Eq. Rep. 97.

Pigott v. Nower 3 Swanst. 334, n.

Walker v. Flamstead 2 ld. Kenyon's Rep. 57.

Metcalf v. Pulvertoft 2 Ves. & Be. 200.

Moore v. M'Namara 2 B. & Bea. 186.

Garrard v. Lord LauderdaleENR 3 Sim. 1; S. C. 2 R. & My. 451.

Walwynn v. CouttsENRENR 3 Mer. 707; S. C. 3 sim. 14.

Acton v. Woodgate 2 M. & K. 492.

Bill v. Cureton 2 M. & K. 503.

Pulvertoft v. Pulvertoft 18 Ves. 84.

Metcalfe v. Pulvertoft 1 Ves. & Be. 181.

Croker v. MartinENR 1 Bli. N. S. 573.

Doe d. Davy v. OxenhamENR 7 M. & W. 131.

Chadwick v. BroadwoodENR 3 Beav. 308.

Doe d. Newman v. GodsillUNK 4 A. & El. N. S. 603; n.; S. C. 5 Jur. 170.

CASES IN EQUITY. 171 DREW v. LORD NORBURY. (Chancery.) 1846. Chancery. Jan. 30. Feb. 12. September 1782. Francis Drew, the lessee, died in 1806, leaving Ringrose Drew his eldest son and heir-at-law, who became entitled to his interest in the lease. In 1810 Francis Drew, the son, the other cestui que vie, died, so that Ringrose Drew became also the sole surviving cestui que vie. He died in 1835, leaving the plaintiff his eldest son and lion suit by a heir-at-law. judgment cre The lease to James Ringrose, subject to which the lease to Drew ditor of a de-was made, expired, by the death of the last cestui que vie in it ceased , on esep:r owner. the 15th of October 1839. The rent reserved by that lease was also money was was£150 yearly, precisely the same as that reserved in Drew's lease. PCaourt,illand the balance paid to the trustee, who joined in the conveyance. A had not been served with subpoena, or appeared till after the date of the lease. In a suit, instituted after a great lapse of time, for renewal, by the representative of the lessee against the representative of the purchaser, insisting that the trust deed was voluntary and revocable, and that the sale in the suit did not affect the lease :- Reld,that the purchaser having got a prior legal estate under the trustee, and the equitable estate from payment of the prior incumbrances, was not bound to renew, especially after such a time passel without recognition of the plaintiff's rights. A person joining in a conveyance of all his estate, &c., in one right, transfers to the purchaser all the title be has in any other right. Semble-a suit is lis pestle'', before service of subpoena; and a general adminisÂtration suit is lie pestles, as to lands ultimately sold in it (though it did not seek to enforce a specific claim against them), so as to avoid a lease by the inheritor after its institution. The plaintiff claimed under a renewable lease of 1782 lands then let under a prior lease, subject to the same rent. The prior lessees remained in possession till their lease expired in 1839, paying the rent directly to the head landlord : the lessee of 1782 neither received or paid rent, but was served with an ejectment begun by the land- lord in 1833. $embte, his rights were barred by the Statute of Limitations, 172 CASES IN EQUITY. The title of John Ringrose Bowerman, at the time he made the lease to Drew, was as follows :---John Ringrose being seised in fee of these lands, with several other estates, made his will, under the residuary devise in which Ringrose Bowerman, his grandson, became entitled to •an undivided moiety of them. In 1757 Ringrose Bowerman entered into a deed of partition with his cousin, who was entitled as devisee of the other moiety ; and by this deed Cappikennane and Clonesker, with other lands, were conveyed to Ringrose Bowerman in severalty, subject to a moiety of some debts of the testator. Ringrose BowerÂman died soon after, leaving John Ringrose Bowerman his eldest son and heir-at-law, who became entitled to the lands. In March 1774, persons of the name of Purdon, who were judgÂment creditors of Ringrose the testator, on foot of a judgment of 1727, filed a bill against the several persons interested in his real and personal estates, praying the usual accounts of all charges and incumbrances affecting the estates of which he had died seised, and an account of his real and personal assets, and to raise their demand thereout. The Rolls' certificate showed that John Ringrose Bowerman never appeared to this bill ; and there was no proof that he was ever served with subpoena. Before any effectual proceedings were taken against him, he executed a deed, between himself of the one part, and Richard Neville of the other part, dated the 15th of July 1782 (a few months previous to Drew's lease), by which he conveyed the lands, with others, to Richard Neville, on trust, by sale or mortgage, to raise sufficient to pay off the incumbrances affecting the lands, and also the debts of John Ringrose Bowerman himself, and to pay over the balance to him. This deed was duly registered on the 17th of August 1782. By another deed, made in December 1782 (subseÂquently to Drew's lease), John Ringrose Bowerman conveyed the remainder of the lands which he had become entitled to by Ringrose's will, to Richard Neville, on similar trusts. In January 1783 the Purdons filed an amended bill, making John Ringrose Bowerman a party. In this bill it was stated that the plaintiffs having been requested by John Ringrose Bowerman to furnish an account of their demands against him, they did so, after allowing credit for a moiety of their debts paid by the owners of the other moiety of Ringrose's estates ; that the debt, including the costs of the suit, amounted to £829 ; that Bowerman requested them to make a reduction, and they consented to reduce the claim to £625 ; and an arrangement was made under which the trust deeds to Neville were executed, to secure the payment of that £625 and other debts. Bowerman answered the amended bill, admitting this. The plaintiff's demand was not referred to in the trust deeds, nor did this bill pray the execution of the trusts of them. CASES IN EQUITY. 173 Neville was also made a party to the amended bill of 1783, and in 1846. his answer admitted the deeds of 1782, and submitted to act as the "'neer,. Court should direct. He was married to the heiress-at-law of the DREW surviving trustee of Ringrose's will, which contained a trust of some v. lands (not including Cappikennane or Clonesker) for payment of LORD NORBLIRY. his debts. Mrs. Neville was also one of the co-heiresses-at-law of Ringrose. Barry Drew was the heir of the other co-heiress. Both. he and Mrs. Neville were parties to the amended bill. There was a decree to account in this cause in December 1793, and a report made under it in 1784 ; in November 1784 there w,as a final decree declaring the debts reported and interest, together amounting to £1897, a charge on the lands, and directing a sale of a competent part of them for payment. The lands, including CapÂpikennane and Clonesker, were afterwards sold for £5000. Part of the purchase-money was paid out of Court to the plaintiffs and other creditors, and the balance was paid on consent to Neville. John Toler was the purchaser at the sale for £5000 ; and by deed dated the 13th of March 1787, made between Richard Neville, Bridget Neville his wife and Barry Drew of the first part, John Ringrose Bowerman of the second part, the Master in the cause of the third part, and John Toler of the fourth part, in consideration of the £5000, R. Neville and Bridget his wife and Barry Drew, and John Ringrose Bowerman, according to their respective rights and titles in the lands, conveyed them to John Toler in fee. This deed recited Bowerman's title, but did not recite or refer to the deeds of 1782. There was an indorsement on the deed declaring that Toler purchased in trust for Hector Graham. Some judgments against John Ringrose Bowerman were also at the time of the purchase assigned to Toler. Hector Graham died, having made a will in 1803, and his interest afterwards became vested in the defendant Lord Norbury. In order to prove notice of Drew's lease at the time of the purÂchase, the defendant was interrogated as to the registry searches then made ; but no such searches were produced, and their existence was denied. The persons entitled as representatives of James Ringrose conÂtinued in possession of the lands of Cappikennane and' Clonesker until his lease expired, as above-mentioned, in 1839. They paid their rent directly to the persons entitled to the fee ; and not to Drew or his representatives. It was, as before mentioned, precisely the same in amount as the rent payable under Drew's lease, and no rent was paid directly by the representatives of Drew. Ejectments had been brought by Lord Norbury, the defendant's father, in 1833, with which the plaintiff's father was served. 174 CASES IN EQUITY. The defences chiefly relied on, most of which were stated and Statememt. answered in the charging part of the bill, were the following :- It was insisted that the defendant having got the legal estate, conveyed by the deed of July 1782 to Neville, was in by a prior title, and not bound by the covenant in Drew's lease ; to which it was replied that that deed conferred no new right on the creditors of John Ringrose Bowerman, and never having been...