Forster v Forster

• Jurisdiction: Ireland
• Judge: Barton J.
• Judgment Date: 21 February 1917
• Court: Chancery Division (Ireland)
• Docket Number: (1916. No. 205.)
• Date: 21 February 1917

Forster

and

Forster.

Barton J.

(1916. No. 205.)

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.

1918.

Limitations, Statute of — Realty — Infant — Bailiff — Mortgagee in possession — Express trust — Mistake of Law — Mortgagee of tenant for life overholding — Account of Rents and Profits — Plea of compromise and plene computavit.

Defendant was entitled, under the will of her father F., to a paramount equitable charge upon lands devised to her brothers, who by two legal mortgages mortgaged some of the lands, which were subject to the charge, to defendant to secure money due to her. In 1895, by agreement with her brothers, defendant entered into possession of the lands for the purpose of paying herself arrears of interest, and current interest, on the paramount charge and on the two mortgages. She applied the rents and profits in payment of the interest on the charge, which was always paid in full, and the surplus rents and profits towards paying the interest on the two mortgages, for which purpose they were not sufficient. In 1904 the surviving brother died. All the parties believed that the brothers had been seised in fee of the mortgaged lands, and as the interest on the mortgages was largely in arrear the defendant was allowed to continue in possession under that mistaken belief until June, 1914, when it was discovered that the defendant's brothers had been entitled for life only, and that the plaintiff, who was defendant's nephew, under F's will had been entitled in fee in remainder since 1904.

In 1904 plaintiff was an infant; but defendant was not his guardian, and did not stand in a fiduciary relation towards him. He came of age in 1908, eight years before the bringing of the action. When the mistake was discovered defendant gave up possession of the mortgaged lands; and vouched at the request and to the satisfaction of plaintiff's solicitor an account showing an agreed balance due by her. The account was furnished and vouched on the basis that she was accountable for surplus rents misapplied during the preceding six years. Plaintiff, becoming dissatisfied with the basis of the account, now sought to make defendant accountable for the surplus rents for the preceding eleven years from 1904. Defendant pleaded, inter alia, the Statutes of Limitations, compromise, plene computavit.

Held (1), that defendant was accountable for the preceding six years only; (2) that defendant was not accountable as mortgagee or chargeant in possession in respect of the surplus rents misapplied; and (3) that, in any event, plaintiff was bound by the vouched account showing an agreed balance due by defendant.

Lockey v. Lockey, Ch. Prec. 588; Hickman v. Upsall, 4 Ch. Div. 144; and Baxter Hozier, 5 Bing. N. C. 288; discussed and applied.

Action for an account of the rents and profits of the lands of Normansgrove, in the County of Galway, and of the lands of Ballymihill, in the County of Clare. The writ of summons in the action was issued on 1st March, 1916. The rents of Normansgrove in recent years, before a sale to the Congested Districts Board, were about £90 gross, or £60 net, after deducting tithe, rates, &c. The rents of Ballymihill were about £30 gross, or £25 net; total about £120 gross, or £85 net. The plaintiff alleged that the defendant, being his paternal aunt and being trustee for him under the will of his grandfather, John Forster, entered on these lands in 1904, when he was an infant, and had remained in possession as trustee or bailiff for him, and claimed an account against her as such trustee and bailiff since the date of the accruer of his title in 1904. The plaintiff attained age on 23rd June, 1908. The defendant put several defences on the file. She pleaded that the rents and profits were received by her under a mistake of law on the construction of the will of John Forster. She also alleged that the plaintiff, with knowledge of all the facts and being fully advised, acquiesced in her possession, and pleaded laches and acquiescence. She also pleaded the Statute of Limitations, as, at all events, limiting the plaintiff's claim to six years' arrears. There was a plea of compromise and plene computavit, such a plea, it was alleged, being established by showing that the defendant had rendered an account to the satisfaction of the plaintiff, or an account showing an agreed balance. Defendant claimed that in July and August of 1915 she did both these things. During the progress of the case Mr. Leech K.C., in his opening statement, put forward as a basis of plaintiff's action a claim for an account against defendant as a mortgagee and chargeant in possession of the lands. No such case was made in the writ or statement of claim, and counsel asked for leave to amend. Barton J. allowed the amendment on terms (see judgment).

The plaintiff was a grandson and the defendant a daughter of one John Forster, who died in 1869, leaving, among other children, three sons, Robert Burke Forster, John Burke Forster, and Francis Forster, and two daughters, Margaret and the defendant Minnie. By his will he left a legacy of £400 to defendant, and he charged the lands of Normansgrove and Ballymihill with £1000 in favour of his daughter Margaret and of the defendant. He devised the lands of Normansgrove and Ballymihill, subject to that charge, to his son Robert Burke Forster, with a limitation, in the events that happened, to his other two sons, John Burke Forster and Francis Forster, as tenants in common, in language which it was assumed by the family, until a recent decision of the Court of Appeal in June, 1914, to the contrary, gave estates in fee to them. The testator named his three sons and the defendant executors and executrix. Robert Burke Forster alone took out probate, the right being reserved to the others.

After John Forster's death, in the year 1880, while Robert Burke Forster was in possession of these lands, the defendant demanded her £400 legacy from the acting executor, and her sister Margaret advanced £550 to him; and two mortgages, dated respectively the 20th of September, 1880, were executed, in which the three brothers joined, purporting to mortgage the fee of Normansgrove to the defendant as security for these sums, with interest at 5 per cent. Margaret died, and the defendant became entitled to the whole of the charge of £1000 and to the whole of the mortgages for £950. As regards her charge, she was entitled to £500 in her own right and £500 as administratrix of her sister. The parties beneficially entitled to the latter £500 were five persons to £100 each, and one of the persons was the defendant (who was, therefore, entitled to £600 of the charge beneficially); and the plaintiff and three other persons who were not before the Court were entitled to the remaining £400. The interest on the charge, which was the first and paramount incumbrance on both Normansgrove and Ballymihill, was £50 a “year, and the interest on the mortgages, which were on Normansgrove only, was £47 10s. a year. The net rental of both sets of lands was only about £85, and the interest on the charge and mortgages amounted to about £97 10s. The rents were amply sufficient to pay the interest on the paramount charge, which had been paid in full as appeared by two orders of the Master of the Rolls dated in 1914 and 1915 respectively, but were insufficient to pay the interest on the mortgages, and in 1895 large arrear had accumulated. Robert Burke Forster died in 1892, and the two brothers, John Burke and Francis, were in possession. With their consent, the defendant in 1895 entered into possession and receipt of the rents and profits of the lands for the purpose of paying off said arrears and accruing interest on said mortgages and charge, but the rents and the profits were never sufficient for the purpose of paying the interest on the mortgages in full.

In 1904 John Burke Forster died, leaving the plaintiff, his only son, then aged seventeen, residing in England with his mother, who was his guardian. He and his mother took the advice of Messrs. Tippetts, London solicitors, who entered into correspondence with Messrs. Burton, defendant's solicitors. Serjeant Campion had advised that the two brothers had taken estates in fee under John Forster's will, and that opinion was placed before Messrs. Tippetts. They were also referred to the agent and the ex-agent of the lands. They...