Garnett v Armstrong

• Jurisdiction: Ireland
• Judgment Date: 31 May 1843
• Date: 31 May 1843
• Court: Court of Chancery (Ireland)

(Chancery.)

Garnett

and

Armstrong

Chancery.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

A party entitled to certain freehold lands, confessed a judgment in 1806, and in 1829 granted an annuity, charged upon those lands. The judgment was not revived or redocketed within five years after the passing of the redocketing Act. The rent of the lands charged with the annuity, was suffered to fall into arrear, and the land—lord recovered judgment in an ejectment for non-payment of rent; but the annuitant redeemed the lands. The grantor of the annuity deviled the lands to trustees upon trust to sell and pay his debts, and distribute the surplus among his younger children. After his death, his youger children contracted with the executrix of the annuitant, who had also a life interest in the annuity, for the sale of the lands charged with it; and the lands were accordingly conveyed “to her. By the deed, the lands were conveyed subject to the judgment; but the vendors covenanted against all encumbrances, without excepting it.

Held, that the purchaser took subject to the judgment; and that the judgment creditor was entitled to be paid the amount of it out of the lands conveyed; but that the purchaser was entitled to be repaid, out of the other assets of the testator.

Held also, that the purchaser was not entitled as against the judgment creditor, to the benefit of the 3ums paid in discharge of bead rent.

By a settlement executed in 1795, upon the marriage of Henry Garnett and Alicia Coke, a sum of £1000, which she was entitled to receive at the death of her mother, was vested in trustees upon trust to permit the husband to receive the interest for his life; and after his death (subject to a jointure for the wife, in case certain lands upon which that jointure was charged should fail), upon trust for the eldest son of the marriage, on his attaining twenty-one.

The £1000 was paid to the trustees after the death of Mrs. Garnett's mother in 1805, and they lent it to Mr. Garnett, upon the security of a mortgage which he executed to them of certain lands called Grange Trevett, and certain other lands called Black Hills, held by him under two distinct leases of lives renewable forever, one of which was dated the 14th July 1796, and the other the 1st of November 1803. Mr. Garnett also executed a bond and warrant of attorney to the trustees, as a collateral security for the money, and a judgment for £2000 was entered up against him at the suit of the trustees, in Easter Term 1806.

Mr. Garnett was entitled, in addition to the mortgaged lands, to the absolute interest in certain lands called Tymoole, held under a lease for lives renewable for ever, the date of which was the 18th of July 1801, and which came to him upon the decease of his father. On the 23rd of March 1829, he executed a deed, by which, in consideration of £4000, he granted an annuity of £400, charged upon the lands of Tymoole, to W. S. Armstrong, for three lives, redeemable upon payment of the £4000, and the arrears of the annuity; and he demised the lands to a trustee for the term of one hundred years, for the purpose of securing the annuity. At the time of the purchase of the annuity, there was a considerable sum due for head rent, off the lands of Tymoole, and the landlord had brought an ejectment for non-payment of rent, and had judgment in that ejectment. Some of the lives in the lease also were dead. A sum of £336. 6s. 5d., part of the purchase money of the annuity, was applied in payment of the rent and costs, and a renewal was obtained by Garnett. After the grant of the annuity, Garnett again allowed the head rent to fall into arrear, and the landlord having recovered judgment in an ejectment for non-payment of rent, the annuitant was obliged, in 1834, to pay a sum of £862, to redeem the lands. W. J. Armstrong, by a subsequent deed declared himself a trustee of the annuity for T. K. Armstrong, and the latter, upon his marriage, settled it upon trust for his wife for her life, in case she should survive him, and after her death upon certain trusts for the children, of the marriage, which it is unnecessary to specify, and died in January 1840, leaving the defendant Catherine Frances Armstrong his widow and two children surviving, having appointed her his executrix.

The judgment obtained by the trustees of Henry Garnett's marriage settlement against him in 1806, was not revived or re-docketed until 1839, when it was revived, but without any notice to the parties entitled to the annuity.

Henry Garnett died in 1833, having by his will, dated the 24th of August 1821, devised the lands of Tymoole, and the lands comprised in the mortgage of 1805, to two trustees (Robert Richards, and Henry Cope Sweeny) upon trust to pay £100 a-year out of the lands of Tymoole, to his wife Alicia, in addition to the jointure provided for her by her marriage settlement, and subject thereto to sell the said lands and all his other property real and personal, and after paying his debts thereout, to divide the produce among his children named therein; and he directed that if any of them should die before twenty-one, then the share of such...