Fitzmaurice v Sadlier

• Jurisdiction: Ireland
• Judgment Date: 01 January 1846
• Date: 01 January 1846
• Court: Court of Chancery (Ireland)

Chancery.

FITZMAURICE

and

SADLIER.

Brenan v. FtizmauriceUNK 2 Ir. Eq. Rep. 113.

Rochfort v. Fitzmaurice 2 Dru. & War. 1.

Callaghan v. Callaghan 8 Cla. & Fin. 401.

Milliken v. GrantUNK 8 Ir. Eq. Rep. 16.

Roe v. Mitton 2 Wils. 356, cited 2 Ves. 394.

Pulvertoft v. Pulvertoft 18 Ves. 92.

Myers v. Duke of LeinsterUNK 7 Ir. Eq. Rep. 146, 164.

Doe v. ManningENR 9 East, 59.

Doe v. RolfeENR 8 Ad. & El. 650.

Lloyd v. Lloyd 4 Dru. & War. 374.

George v. Milbank 9 Ves. 193.

Brown v. Carter 5 Ves. 862.

Colclough v. BolgerENR 4 Dow. 54.

Gore v. StackpoleENR 1 Dow, 18.

Kennedy v. Daly 1 Sch. & Lef. 355.

Thornhell v. Glover 3 Dru. & War. 195.

Bowen v. Kirwan Ll. & G. temp. Sug. 47.

Davis v. Jones 1 New. Rep. 267.

Lightburns v. SwiftUNK 2 Ball & B. 207.

Browne v. M'ClintockUNK 7 Ir. Eq. Rep. 347.

Simmonds v. PallasUNK 8 Ir. Eq. Rep. 347.

Warwick v. WarwickENR 3 Atk. 291.

Senhouse v. EarlENR 1 Amb. 285.

Cordwell v. MackrelENR 2 Eden, 347.

Lloyd v. Johnes 9 Ves. 37.

Lavendar v. BlackstoneENR 2 Lev. 146.

Curtis v. Price 12 Ves. 89.

Battersbie v. Farringdon 1 Swanst. 106.

Ford v. GayENR 1 Salk. 285.

Myddleton v. Lord Kenyon 2 Ves. jun. 419.

Jones v. BoulterENR 1 Cox, 288.

Thompson v. SimpsonUNK 1 Dru. & War. 459; S. C. 8 Ir. Eq. Rep. 58.

CASES IN EQUITY. sg 1846. Chancery. FITZMAITRICE v. SADLIER. GAMAISEL FITZGERALD being, previous to the year 1732, seised of The wife of A the lands of Cloghready, Coolnadown and Farranaghcrony, on the nuity on his marriage of his daughter Margaret with Harman Fitzmaurice, the estates under a voluntary plaintiff's great-grandfather, conveyed these lands, with others, to deed, or had a the use of himself for life ; remainder to the use of Harman and right to dower. She concurred Margaret for their joint lives and the life of the survivor ; remainder in a sale of to the use of their first and other sons in tail, subject to a charge of some a his estates to a 5000 for younger children. James Fitzmaurice and four daughters stranger, and joined in were the only issue of this marriage ; and Gamaliel Fitzgerald and cove sue to Harman Fitzmaurice having both died, James Fitzmaurice became levy a fine, was and in- seised of the three denominations of land as tenant in tail. duced to do so James Fitzmaurice, while yet a minor, married Catherine Moore, by other es tates of her and having afterwards attained his majority, by deed, bearing date husband being the 7th of July 1756, conveyed all the lands of which he was so settled by arÂÂticles under seised to trustees for a term of ninety-nine years, upon trust to secure which the plaintiff (her to her thereout an annuity of 300 for her life. It was recited in grandson) the deed of 1760, hereafter mentioned, that this was in pursuance claimed ; the articles recited of an ante-nuptial agreement ; but there was no other proof of any other consider such agreement, and its existence was denied in the cause of Hickey ations, but there was no v. Fitzmaurice, afterwards instituted. There was no proof; except a proof of any; no similar recital, that Catherine had any fortune. fine was ever levied in pur James Fitzmaurice had issue by his wife Catherine three child- seance of the covenant, but ren-namely, Harman Fitzmaurice father of the plaintiff, Thomas the purchaser Fitzmaurice and Margaret Fitzmaurice. He contracted with John was never dis turbed. The Bateman for the sale of the lands of Knockbrack and Cappateigh articles were and the tithes of Abbeyfeale, for the sum of 2900. BatemanLor usufficient d a s sideration against a subsequent purchaser for value. Under articles of 1760 estates were covenanted to be settled on A for life; reÂÂmainder to B for life; remainder to the heirs of his body. The estates were subject to prior incumbrances. A executed a trust deed for payment of creditors ; and a bill was filed by one of the creditors, by judgment against A, puisne to the articles of 1760, and under the direction of A. By an arrangement made in the course of the suit, but in pursuance of a private agreement and without the sanction of the Court, the lands were conveyed in fee-farm by A and B to X, who bad notice of the articles, the rent being reserved to B, the purchase money being applied partly to discharge incumbrances prior to 1760. In a sale in the snit X afterwards purchased the fee-farm rent. The proceeds of the sale were paid to B, and otherwise without regard to the rights of his children, all parties apparently acting under a mistake as to the effect of the articles. A bill afterwards filed by A and B against X, impeaching the sale for fraud, was dismissed. Held, on a bill by the son of B claiming as remainderman in tail under the articles, that the fee-farm grant should be treated as a private sale and set aside, but that the purchase under the decree should be upheld. 596 CASES IN EQUITY. refused to complete his purchase unless Catherine Fitzmaurice would join in the sale and levy a fine. She consented to do so ; and ingly, by an indenture, dated the 26th day of April 1760, and made between James Fitzmaurice and Catherine his wife of the one pare, and Bateman of the other part, it was witnessed that in consideration of the sum of 2400 paid by John Bateman to the said James Fitzmaurice and Catherine his wife, they conveyed to him the lands of Knockbrack and the tithes of Abbeyfeale, and covenanted with him to levy a fine before the last day of the then next Trinity Term to his use, discharged of all dower or jointure of Catherine ; and the deed contained a covenant for further assurance on the part of James Fitzmaurice. By another deed of the same date, and containing covenants similar to those contained in the last deed, the lands of Cappateigh were conveyed to Bateman in fee. A third deed, contemporaneous with the last two and bearing the same date, was made between James Fitzmaurice of the first part, Catherine his wife of the second part, and Southwell Moore and Richard Rose of the third part : it recited the settlement of 1732, under which James was entitled, and that James had intermarried with Catherine Fitzmaurice, otherwise Moore,, his then wife, 5, whom he had issue two sons, Harman and Thomas, and one daughÂÂter, Margaret ; and that he had before his said marriage with the said Catherine agreed to settle a maintenance or jointure of 300 yearly upon her in case she should survive him, or in case they should at any time separate and live asunder, in lieu and satisfaction of dower, which was agreed to be charged on all the lands late the estate of the said Harman Fitzmaurice, sen. It also recited the articles of the 7th of July 1756, and that in pursuance of the agreement the 300 a-year was thereby secured to Catherine; and then recited that James Fitzmaurice had sold or agreed to sell to John Bateman the said lands of Knockbrack, Cappateigh, and the tithes of Abbeyfeale, whereby the security for the said Catherine's jointure was become of less value, and that James was desirous to carry the two former articles into execution, not only to make a provision or jointure for Catherine if she should outlive him or they should separate, but eke) to make a provision for his children' by her, and for settling the lands to the uses thereinafter menÂÂtioned. The deed witnessed that in consideration of the marriage between him and Catherine, and in consideration of a marriage portion by him had and received, and in consideration of the said Catherine's joining with the said James in levying a fine of the lands sold to John Bateman, and for a nominal consideration, the said James Fitzmaurice covenanted with the said Southwell Moore CASES IN EQUITY. 597 and Richard Rose, that he the said James Fitzmaurice or his heirs should and would by sufficient conveyances, as the Counsel of the said Southwell Moore and Richard Rose should direct, convey to them and the survivor and his heirs, all that and those the said lands. of Cloghready, Coolnadown and Farranaghcrony, together with the other lands, to the uses and for the intents and purposes thereinafter mentioned, or as near thereto as deaths of parties and other conÂÂtingencies would admit, that was to say :-to pay the said Catherine, if necessary, in case the said James and Catherine should live separate, a separate maintenance of 300 a-year, and subject thereto to permit the said James Fitzmaurice (subject to his mother's life estate in some of the lands) to receive the rents and profits for his natural life, without impeachment of waste ; remainder to trustees to preserve, &c.; with remainder to the intent that Catherine FitzÂÂmaurice should receive for her jointure an annuity of 3004 with proper remedies for the recovery thereof; with remainder to the use of Harman Fitzmaurice, the eldest son of James, and to permit and suffer the said Harman and his assigns, during his natural life, to take the rents, issues and profits to his and their own use ; and from and after the decease of Harman, to the use of the heirs male of the body of Harman ; and for default of such issue, to the use of Thomas, the second son of James Fitzmaurice, for life, remainder to the issue male of his body ; remainder to third, fourth, fifth and sixth sons of James Fitzmaurice in succession, and the several heirs male of their several and respective bodies, with an ultimate limitation, on failltre of intermediate limitations, to Margaret, the daughter of James Fitzmaurice, and any other daughters he might have by Catherine his wife, and if no other daughter, to her, her heirs and assigns ; but if there should be no daughter who should live to be married, then that the lands should go to James in fee. The deed then contained a power to James to raise 2000 to be applied in discharge of incumbrances affecting the estates, and to charge the estates with an annuity of 100 as a jointure for any after-taken wife ; and a power to the trustees therein named, to raise a sum of 3000 for younger children...