Hamilton v Lyster

• Jurisdiction: Ireland
• Judgment Date: 17 April 1845
• Date: 17 April 1845
• Court: Rolls Court (Ireland)

Rolls.

HAMILTON

and

LYSTER.

Walwyn v. Lee 9 Ves. 24.

Jerrard v. Saunders 2 Ves. jun. 454.

Bowen v. EvansUNK 6 Ir. Eq. Rep. 615.

Story v. Lord WindsorENR 2 Atk. 630.

Jackson v. RoweENR 4 Russ. 514.

Jones v. Powles 3 My. & Kee. 596.

Jackson v.RoweENR 4 Russ. 518.

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

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

Jackson v. Rowe 2 Si. & Stu. 472.

Jones v. SmithENR 1 Hare, 57.

Barnwell v. Barnwell 3 Ridg. P. C. 24.

Pulteney v. Warren 6 Ves. 72.

Monypenny v. Bristow 2 Russ. & Myl. 117.

Dormer v. FortescueENR 3 Atk. 124.

Walwyn v. Lee 9 Ves. 24.

Jackson v. RoweENR 3 Sim. & S. 475.

Roche v. Morgell 2 Sch. & Lef. 727.

Foley v. HillENR 3 My. & Cr. 475.

Dormer v. FortescueENR 2 Atk. 282.

Pemberton v. Pemberton 13 Cwa. 298.

Crow v. TyrelUNK 2 Mad. 408.

560 CASES IN EQUITY. HAMILTON v. LYSTER. Tars cause came on to be heard on plea and demurrer. The bill, which was filed on the 6th of January 1845, by the committee of the lunatic plaintiff, stated that Elizabeth Lyster, the plaintiff's mother, shortly after the death of the plaintiff's father, the Honorable Charles Hamilton, intermarried with James Lyster, she being then seized in fee of an undivided moiety of a moiety of the manor of Athleague, and also the courts leet, courts baron, view of frankpledge, perquisites and proÂÂfits of courts, fairs and markets, profits and tolls of fairs and markets, and royalties in Athleague, Cloneen, Cully, Keenagh, Lisnigirr, Clonikelly, Corrileagh and Liscor, in the county of Roscommon. That by an indenÂÂture of settlement of the 27th of July 1805, made subsequent to the marriage, reciting that the said Elizabeth was so seized in fee of the said lands and premises, and that it was agreed that the said James Lyster was to have an estate for life therein in case he should survive the said Elizabeth ; and that she was then minded to settle the said Athleague estate on her family as thereinafter particularly mentioned ; the said lands and premises were conveyed to Robert Blakeney and John Kelly, their heirs and assigns (subject to a mortgage to Jane Lyster and an annuity to Patrick Broderick), in trust to the use of James Lyster and his assigns for his life; remainder to the use of the said Elizabeth and her assigns during her life ; remainder to the use of Richard Hamilton (her second son); remainder to his first and other sons in tail male ; remainder to his daughters in fee as tenants in common : and for default of such issue, to the use of the plaintiff Christopher Hamilton, for life; remainder to his first and other sons in tail male, with other remainders over, and ultimate remainder to the right heirs of the said Elizabeth, in fee ; and that Mr. and Mrs. Lyster thereby covenanted to levy a fine to the use of the settlement. That the settlement contained a power for Mr. and Mrs. Lyster during their joint lives, and after their decease for the person in actual possession, to lease for one life or twenty-one years in possession. That the settlement was registered on the 3rd of August 1805, and a discovered the real state of the title, and that neglecting to search the registry is a failure of due diligence.) Held also, that when at the time of a purchase tenants are in possession, the purchaser entering into possession and receipt of the rents, has constructive notice of the title by which the tenants hold. Held, overruling the demurrer, that, as the plaintiff could not have full relief except in equity, he was entitled to the account, as consequential to the relief, after he should have established his title at law. CASES IN EQUITY. 561 fine duly levied in the then next Michaelmas Term, by Mr. and Mrs. 1845. Lyster to the uses of the settlement. Rolls. That on the 8th of August 1806, a portion of the said manor and HAMILTON lands were sold to Gerard Irvine in trust for William Jameson, under a V. decree in a suit to foreclose the mortgage to Jane Lyster, for the residue LYSTER. of the mortgage term of five hundred years, from the 20th of June 1800; and that William Jameson or his assigns were then in possession of the same. That Richard Hamilton died in 1823 intestate and without issue, leaving the plaintiff, his only brother, him surviving ; and that Elizabeth Lyster died on the 1st of September 1827, and that James Lyster married again, and died in October 1840, having continued up to his death in posÂÂsession of the part of the estates which were unsold, and by his will devised them to his after-taken wife, the defendant Anne Stewart Lyster, for her life, with remainder to his nephew, the defendant James O'Beirne, in fee ; that Anne S. Lyster, upon the death of her husband, went into, and is still in, possession of the lands so devised to her as aforesaid ; and was, by order of the 8th of May 1841, appointed committee of the plaintiff's person, who was then a lunatic. The bill then charged that the whole, or portions of the said unsold lands were held by tenants under leases made by Mr. and Mrs. Lyster under the power, or by some of her ancestors previously ; and that there were outstanding and unsatisfied terms. That Richard Hugh Lowe, the committee of the plaintiff's estate, was unable to discover the title deeds of the said estates ; that they came into the posssesion of James Lyster during his life, and are now lost or in the possession of Anne S. Lyster or J. O'Beirne ; and that the plaintiffs are, therefore, unable to say whether the whole or what part of the premises is in the possession of tenants, or what terms are outstanding and unsatisfied, and in whom. That being desirous of bringing an ejectment to establish his title, the plaintiff had applied to the defendants to consent that the title should be tried on the merits and waive temporary bars, which they refused. The bill prayed an issue to try the title, or that plaintiff might be at liberty lo proceed in and serve an ejectment on the defendants, and that they might take defence thereto, and be restrained from setting up temporary bars ; and, in the event of the plaintiff establishing his title, for an account of the rents and profits received by A. S. Lyster since the...