GARDINER v BLESINTON. [Chancery.]

• Jurisdiction: Ireland
• Judgment Date: 13 July 1850
• Date: 13 July 1850
• Court: Chancery Division (Ireland)

Chancery.

GARDINER

and

BLESINTON.

Malcolm v. Charlesworth 1 Kee. 63.

Drew v. Lord NorburyENRUNK 3 Jo. & Lat. 267; S. C. 9 Ir. Eq. Rep. 171.

Dillon v. Costello 1 Jo. 410.

Gubbins v. Gubbins 1 Dr. & W. 160.

Malcolm v. CharlesworthENR 1 Keen, 63.

Drew v. Lord NorburyUNK 3 J. & L. 300; S. C. 9 Ir. Eq. Rep. 186.

UNK 9 Ir. Eq. Rep. 188.

Gubbins v. GubbinsUNK 1 Dru. & Wal. 160.

Barlow v. Smyth 1 Jo. 410.

Battersby v. Rochfot 2 J. & L. 431.

64 CHANCERY REPORTS. 1650. Rolls. GARDINER v. BLESINTON. May 6. an the Rolls.) July 13. A being enti- Br a memorandum of agreement bearing date the 16th of February tied to the benefit of cer- 1838, and executed between Alfred Count D'Orsay of the first part, tain articles of agreement en- the Countess D'Orsay of the second part, Charles John Gardiner of tered into the owners by rs of the third part, Viscount Canterbury, the Earl of Charleville and landssituated situa in Ireland to George Hill Esq., of the fourth part, the Countess D'Orsay and execute to him Charles John Gardiner covenanted that they or one of them, their a mortgage thereof for or one of their heirs, executors, administrators or assigns, should 42,000, by a deed executed and would, as soon as conveniently might be, after a sum amounting in 1840, recit ing the articles, to 180,000, and certain other sums in the agreement mentioned, assigned that sum and all should have been raised out of or upon the estates of the testator, the securities for its payment (the Earl of Blesinton) execute or cause to be executed a good and to trustees upon certain valid mortgage of the said estates or the residue thereof (subject as trusts. By a deed executed in said agreement mentioned) for securing to the said Count in En, aglanlso in D'Orsay, his executors, &c., the payment, on or before the expira- 1842, r e- citing the tion of ten years from the date of the said agreement, of the sum articles, A, for valuable consi- of 42,000, with interest at 5 per cent. from the date of the deration, as signed the agreement. same sum of 42,000, with An indenture bearing date the 8th of February 1840 was made all the securi ties for its and executed by and between the said Count D'Orsay of the first payment, to M by way of part, and Robert Hume and James Russell, who were creditors of mortgag of e. Count D'Orsay, and who had consented to act as trustees for them- The deed 1842 was re- selves and the other creditors of Count D'Orsay, whereby, after gistered previ- ously to that reciting the memorandum of agreement of the 16th of February of 1840. The memorial of 1838, the Count D'Orsay assigned the said sum of 42,000 and the deed of 1842 described the lands on which the 42,000 was charged in the same manner as they were desÂÂcribed in that deed itself ; but neither the deed or memorial mentioned the names of the baronies or parishes in which the lands were situated. Semble-That the deed of 1842 would have been properly the subject of registry if the memorial had stated the names of the baronies and parishes. Held-That in consequence of the omission from the memorial of the names of the baronies and parishes, the deed of 1842 was not formally registered, and therefore had not gained priority over the deed of 1840. Malcolm v. Charlesworth (1 Keen) observed upon. CHANCERY REPORTS. 65 the interest thereon to the said trustees, and all securities then sub- . 1850 sisting or thereafter to be given for said sum, and all his interest Chancery. under said agreement, so far as respected said sum of 42,000, and GARDINER V. the interest thereof, and the securities for the same, to hold to the BLESINTON. said trustees as fully as Count D'Orsay would have held the same, Statement. if the said indenture of the 8th of February 1840 had not been made. The deed then contained a power of attorney to the trustees to receive the 42,000, and a covenant for further assurance. That deed was not registered until the 8th of April 1842, subseÂÂquently to the registration of the deed hereinafter next mentioned. On the 22nd of January 1842, a deed was made and executed between the Count D'Orsay of the first part, Francis Mountjoy Martyn of the second part, and Charles Cecil Martyn of the third part. This deed was registered on the 24th of February 1842, and the memorial of it recited the marriage settlement of Count and CounÂÂtess D'Orsay of the 2nd of November 1827.4 It further recited the will of Charles John late Earl of Blesinton, dated the 31st of August 1823, and a devise therein to his daughter Lady Harriet Gardiner of " all his estates in the county and city of Dublin," subject to certain charges, provided she married the said Count D'Orsay, and a devise in the said will to Charles John Gardiner of "all his estates in the county of Tyrone," subject as therein mentioned, and also of the reversion of the Dublin estates in case of failure of male issue of his daughter. After some further recitals, which are not material, the memorial recited that the estates of the testator in the county and city of Dublin consisted of a lordship, advowson, messuages and hereditaments, to which he was entitled for an estate in fee-simple, and of messuages, estates and tenements, to which he was entitled by virtue of leases for lives renewable for ever, and by virtue of leases for years ; and that the estates of the testator in the county of Tyrone consisted of manors, lands and other hereditaments, to which he was entitled for an estate in fee-simple, and of the manor * See this settlement and some of the other documents referred to in this case in Rochard v. Fulton (1 Jo. & Lat. 413 ; S. C. 7 Ir. Eq. Rep. 131). vot, 1. 9 66 CHANCERY REPORTS. of Mountjoy, to which he was entitled by lease for a term of years ; that the testator was also entitled to estates in the city and county of the city of Kilkenny, which were not devised by his will, and which had descended to his said daughter, who had married Count D'Orsay. It further recited that there was no issue of the marriage, and that in the year 1831 they had separated and had since lived apart. It also recited the proceedings in the suit of Gardiner v. Blesinton, and the said articles of agreement of the 16th of February 1838, and that Count D'Orsay was indebted to the said Francis Mountjoy Martyn by bond in the sum of 10,000, which bond bore date on the 31st of October 1838; and that upon the execution of the said bond it had been expressly agreed that Count D'Orsay should execute a good and valid charge on the said sum of 42,000 for the better securing the payment of the said sum of 10,000 and interest ; and it was witnessed that the Count D'Orsay granted and assigned unto the said Francis Mountjoy Martyn, his executors, &c., the said sum of 42,000 agreed to be raised by the sale or mortgage of the estates of the said Charles John Earl of Blesinton, and all the interest due thereon, and all the moneys, &c., which the said Count D'Orsay, his executors, &c., then was or thereafter might...