Heath v Wickham

• Jurisdiction: Ireland
• Judgment Date: 26 April 1880
• Date: 26 April 1880
• Court: Chancery Division (Ireland)

CHANCERY DIVISION.

HEATH

and

WICKHAM.

Stanley v. Stanley 7 Ch. Div. 589.

Robinson v. WheelwrightENR 6 De G. M. & G. 535.

Stuart v. Kennedy 3 Ir. Jur. (O. S.) 305.

Reid v. Shergold 10 Ves. 370.

Vaughan v. VanderstegenENR 2 Drew. 165.

Blatchford v. WooleyENR 2 Dr. & Sm. 204.

Allen v. KnightENR 5 Hare, 273.

Wilton v. Hill 25 L. Jour. Ch. 156

Wall v. RogersELR L. R. 9 Eq. 58.

Smith v. DeathENR 5 Madd. 371.

Horner v. SwannUNK 1 T. & R. 430.

Isaac v. HughesELR L. R. 9 Eq. 191.

Green v. Green 2 Jo. & L. 541.

Stewart v. Marquis of DonegalENR 2 Jo. & La. 636.

Page v. SoperENR 11 Hare, 321.

Barton v. BriscoeENR Jac. 603.

In re Chambers 11 Ir. Eq. R. 518.

Roberts v. TunstallENR 4 Hare, 257.

Bright v. LegertonENR 2 De G. F. & J. 606.

Harcourt v. WhiteENR 28 Beav. 303.

Wright v. VanderplankENR 8 De G. M. & G. 133.

Ashton v. M'DougallENR 5 Beav. 56.

Jones v. HigginsELR L. R. 2 Eq. 538.

Derbishire v. HomeENR 3 De G. M. & G. 80.

Brooke v. Mostyn 2 De G. J. & Sm. 373.

Sockett v. Wray 4 Br. C. C. 483.

Heatley v. Thomas 15 Ves. 603.

Re Walsh's Trusts 1 L. R. I. 320.

Re Chambers a minorIR 11 I. E. R. 518.

Kellaway v. JohnsonENR 5 Beav. 319.

Baggett v. MeuxENR 1 Ph. 627.

Derbishire v. Home ENR 3 De G. M. & G. 80.

Married woman — Separate estate — Restraint upon anticipation — Testamentary power of appointment — Deed — Construction — Conveyance by deed acknowledged — 4 & 5 Wm. 4, c. 92, ss. 68, 69 — Statute of Limitations — Laches — Acquiescence.

376 LAW REPORTS (IRELAND). [L. R. I. V C. THE VICE-CHANCELLOR :- 18'79. Having regard to the nature of the securities other than by PArimm the recognizances of individuals, which have, of late years, been v. BARBINGT°N• accepted in many instances by the different branches of this Court in the case of Receivers, and which have been found to work satisÂfactorily, I think that the most convenient way to make the orders on the appointment of Receivers in future will be, instead of sayÂing in the order that the Receiver should enter into security by reÂcognizance, to direct that the Receiver should enter into security according to the course of the Court. Solicitor for the Receiver : Mr. A. L. Barlee. v. C. HEATH v. WICKHAM. 1879. Married woman-Separate estate-Restraint upon anticipation-Testamentary July31 17, 18, power of appointment-Deed-Construction-Conveyance by deed acknow- ledged-4 4- 5 Wm. 4, c. 92, ss. 68, 69-Statute of Limitations-LachesÂAcquiescence. By a separation deed a husband conveyed the lands of Blackacre held in fee-simple to trustees, upon trust to permit his wife (the Plaintiff) to receive the rents during her life, for her separate use, without power of anticipation; and after her death to the use of such persons as she should by will appoint; and, in default of appointment, to the use of the husband and his heirs. The deed also contained a grant of an annuity upon trust for the Plaintiff ; and the husband thereby covenanted that he would not take any proceedings to compel the Plaintiff to cohabit with him. A deed of agreement was subsequently executed by the Plaintiff and her husband, by which it was agreed that the husband should pay the Plaintiff a certain sum (which, however, was less than the amount due to her at the time under the separation deed for arrears of rents and of the annuity), and the costs of litigated proceedings which had taken place, and that the trustees should reconvey to him the lands of Black-acre ; and accordingly by a further deed, which was executed by the Plaintiff, the trustees, by her direction, reconveyed the lands to the husband. Both the last-mentioned deeds were separately acknowledged by the Plaintiff as a marÂried woman :- Von. III.] CHANCERY DIVISION. 377 Held, that the deeds of agreement and reconveyance did not operate either Tr. C. to dispose of her life estate or of the remainder in fee ; that her acknowledg- 1879. ment of the deeds under the Fines and Recoveries Act did not operate as a re- A„1,31 lease or extinguishment of her power of appointment, as there was in the v. separation deed an implied restraint from alienating the remainder in any WICKKAM• manner save by will ; that the Statute of Limitations did not apply ; and that the Plaintiff was not barred by laches or acquiescence. BILL praying that an agreement of the 13th of October, 1849, and reeonveyance of the same date, in the bill mentioned, might be declared to be inoperative against the Plaintiff, and void (1), on the ground of alleged fraud ; and (2), on the ground that at the time of the execution of the said instruments the Plaintiff was a married woman, and restrained from anticipation of the rents of the premises, and had no power of appointment over them except by will. The Plaintiff was the widow of the Rev. Francis Wilson Heath, their marriage having taken place in the year 1836. By indenture dated the 11th of January, 1839, Arthur Walter Cope, the Plaintiff's father, conveyed to Francis Wilson Heath two unÂdivided eighth parts of the lands of Mount Eccles, in the county of Dublin, and also certain lands known as the Drumilly Estate, in the county of Armagh, of which Arthur Walter Cope was theretofore seised in fee. Shortly after the execution of this deed the Plaintiff separated from her husband, in consequence, as the bill stated, of his harsh and cruel treatment of her, and they continued thenceforward to live apart from each other. By a separation deed dated the 22nd of April, 1844, made between Francis Wilson Heath of the first part, the Plaintiff of the second part, and William W. Algeo and John Stanley of the third part, in consideration of the Plaintiff living separate and apart from him, and of the covenants in the indenture on behalf of the Plaintiff, Francis Wilson Heath granted to Wm. W. Algeo and John Stanley, their heirs and assigns, the said two undivided eighth parts of Mount Eccles, containing 5 acres and 31 perches, upon trust to permit the Plaintiff to receive the rents thereof during her life for her separate use without power of anticipation; and from and after the death of the Plaintiff upon trust to and for the use of such persons as the Plaintiff should by will or codicil appoint ; and, in default of appointment, to and for the use of LAW REPORTS (IRELAND). [L. R. I. Francis Wilson Heath, his heirs and assigns for ever. And it was by the same deed also witnessed that Francis Wilson Heath did grant unto the said Wm. W. Algeo and John Stanley, their heirs, executors, administrators and assigns, an annuity of £200 payable during the life of the Plaintiff, and charged on part of the said Drumilly Estate, upon trust for the Plaintiff. And the said Francis Wilson Heath covenanted with Algeo and Stanley, that the Plaintiff might, notwithstanding her coverture, live separate and apart from him as if she were a few sole, and that she should thenceforth be freed and discharged from his power, control and authority, and that he would not molest or disturb the Plaintiff in her manner of living, nor require, nor by any means whatsoever, either by ecclesiastical censure, or by taking out process, or by inÂstituting any suit whatsoever, compel the Plaintiff to cohabit or live with him ; and by the same indenture Algeo and Stanley covenanted that the Plaintiff should not molest or disturb Francis Wilson Heath, and should not require any further maintenance from him, and that they would keep him indemnified against all debts of the Plaintiff. And it was by the said indenture agreed and declared that, if the said Francis Wilson Heath and the Plaintiff should at any time thereafter mutually consent and agree to live and cohabit together, and should testify their desire so to do by any writing under their hands and seals, or by an indorsement on the said indenture, duly attested by two witnesses, then and in such case the said indenture should from thenceforth be to all inÂtents and purposes void, and to no effect, save and except so far as the indenture related to the lands of Mount Eccles-it being thereby declared that Francis Wilson Heath should be thereby absolutely divested of all estate and interest therein. After this deed was executed, the Plaintiff received one or two gales of rent out of the lands of Mount Eccles, but received, as she stated, no payment whatever on foot of the annuity of £200 a-year. On the 29th of July, 1844, Francis Wilson Heath instituted a suit in the Consistorial Court of Armagh against the Plaintiff for restitution of conjugal rights, and obtained a decree in that suit in July, 1845, which was affirmed by the Court of Delegates. The present Plaintiff Mrs. Heath commenced a suit for a divorce, VoL. III.] CHANCERY DIVISION. which was dismissed on the 27th May, 1848. She appealed to the Court of Delegates, and her appeal was pending in October, 1849. In November, 1845, Francis Wilson Heath filed a bill in the Court of Chancery against the Plaintiff and Messrs. Algeo and Stanley, praying that the indenture of the 22nd of April, 1844, might be cancelled, and that Algeo and Stanley might be reÂstrained by injunction from further prosecuting an action which they had brought for the recovery of the annuity of £200. An interlocutory injunction was granted, which was not, however, conÂtinued, and no further step was taken in that suit. By indenture, dated the 13th October, 1849, and made between Francis Wilson Heath of the first part, the Plaintiff of the second part, and William W. Algeo and John Stanley of the third part, it was agreed between the parties that the said Francis W. Heath Would pay to the said William W. Algeo and John Stanley, in trust for the absolute use of the Plaintiff, the sum of £700, and would also pay the costs of the said several suits, and cause the bill filed by him in the Court of Chancery to be dismissed, and that William W. Algeo and John Stanley would on such payment being made, and the said bill being dismissed...