Hickson v Collis

• Jurisdiction: Ireland
• Judgment Date: 29 April 1844
• Date: 29 April 1844
• Court: Court of Chancery (Ireland)

Hickson

and

Collis.

Chancery.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

In 1809, two estates were settled to such uses as A. should appoint, and in default of appointment to A. in fee. Several judgments were recovered against A., between 1809, and 1829. In 1829, A. in exercise of his power conveyed one of the estates to a purchaser in fee, and the other to trustee for 500 years, to indemnify the purchaser against such debts affecting the estates sold, as he should pay off with remain der to himself in fee. The purchaser paid off the judgments which were assigned by a deed to which A. was a party, and covenanted that the sums paid in discharge of them should be within term; trusts of the 500 years' term; Held, that these sums were not, as against other creditors, charged on the 500 years' term, inasmuch as being defeated by the exercise of A.'s power, they did not affect the lands conveyed to the purchaser.

A judgment was obtained against A. in Michaelmas Term 1818, within twenty years before the passing of the 9 G. 4, c. 35. After the passing of that Act, on 1st April 1831, A. mortgaged his estate. The judgment was not revived or re-docketed, until Trinity Term 1840. Held, that under the second section of that Act, the judgment was void as against the mortgagee.

This construction does not affect the first section of the Act, and the practice of redocketing judgments immediately after their entry is unnecessary and improper.

The case of Knox v. Kelly, 1 Dru. & Wal. 542, commented on.

By the decree in this cause, bearing date the 8th of June 1837, it had been referred to the Master to take an account of the sum due to the plaintiff John James Hickson, upon foot of a certain deed of mortgage, bearing date the 1st of April 1831, as well on account of the sum originally advanced, as also of all other sums subsequently advanced or paid by the plaintiff on foot thereof; and also an account of all sums of money paid by the plaintiff on account of charges affecting the mortgaged premises prior to the date of the said mortgage; and that the Master should state the amount of such payments, and when and under what circumstances they were made, and the dates and priority of such charges and encumbrances; and take an account of all charges and encumbrances affecting the mortgaged premises, prior to or cotemporaneous with the said mortgage, and the nature and priority thereof respectively. Since the decree J. J. Hickson had died, and the present plaintiff was his personal representative.

Under this decree the Master found that—

By deed of the 24th of February 1780, William and Edward Collis granted the lands of East and West Lismore, and other denominations to John Herbert, his heirs and assigns, to the use of William Collis, the grand-father of the defendant, for life; remainder to the use of Edward If Collis, the father of the defendant, for life; remainder to the trustee to preserve contingent remainders; remainder to the use of the first son of the body of Edward Collis, and the heirs male of the body of such d first son; with divers remainders over, and an ultimate remainder to the right heirs of William Collis for ever.

The defendant William Collis was the first son of Edward Collis; and by deed of the 12th of February 1804, made between the said Edward Collis, the defendant William Collis, and Walter Prendergast, Edward Collis granted all the lands comprised in the foregoing deed of February 1780, to Walter Prendergast as tenant to the precipe, that a recovery might be suffered of the said lands; and it was declared that the recovery should enure to the use of Edward Collis for life, with remainder to the use of the survivor of the said Edward and the defendant William Collis, and the heirs and assigns of such survivor.

A recovery was suffered in Hilary Term, 1804.

By indenture of the 20th of January 1809, made between Edward Collis of the first part, the defendant William Collis of the second part, James Crosbie of the third part, and trustees of the fourth part, reciting the title of the Collises to the lands comprised in the foregoing deeds, and that Edward Collis had contracted the debts and granted the charges mentioned in the schedule annexed; and that to exonerate the estate, and to relieve Edward Collis from the debts, the defendant William Collis joined him in a sale to Nathaniel Bland of three denominations of the lands comprised in the foregoing deeds; and reciting that it was agreed that the purchase-money, £9300, should be applied in payment of the debts, and the residue paid to the defendant William Collis; and that it was agreed that the lands of East and West Lismore, Lisantanavally, Lead, Ballintobeing, and part of Ardrinan (being the remainder of the lands comprised in the foregoing deeds) should, subject to a trust term for the indemnity of Bland, and an annuity of £248 for Edward Collis, be conveyed to such uses as the defendant William Collis should appoint; Edward Collis and the defendant William Collis joined in conveying the latter denominations, East and West Lismore, Lisantanavally, Lead, Ballintobeing, and the part of Ardrinan, to James Crosbie and his heirs, subject to the trust term for the indemnity of Bland, to uses to secure to Edward Collis the annuity of £248, and subject thereto to such uses as the defendant William Collis should, by any deed or writing under his hand and seal or by his last will, limit and appoint; and in default of appointment, to the proper use and behoof of the said James Crosbie and his heirs, but in trust for the said William Collis, his heirs and assigns.

By deed of the 10th of August 1829, made between the defendant William Collis, Edward Collis, James Crosbie, and John James Hickson, William Collis, in consideration of £1184. 3s., pursuant to and in exercise of the power reserved to him by the last mentioned deed (of the 20th of January 1809), and of all other powers or authorities in anywise enabling him thereunto, did absolutely and irrevocably direct, limit, and appoint, that the lands of Lead and Ballintobeing, two denominations of the lands comprised in the deed of January 1809, should be and enure to Richard M'Gillicuddy, for a term of two hundred years, the trusts of which are immaterial; and after the expiration or other sooner determination of the said term, and in the mean time subject thereto, to the use of John James Hickson, his heirs and assigns. On this deed there was a schedule indorsed, enumerating various encumbrances affecting the lands sold.

By another deed bearing date the same day, to which also all the parties to the foregoing deed were parties, the defendant William Collis, pursuant to and in execution of the power and authority given and reserved to him by the said deed of the 20th of January 1809, and of every other power and authority in anywise enabling him thereunto, did absolutely and irrevocably direct, limit, and appoint, that the lands of East and West Lismore, Lisantanavally, and the part of Ardrinan (being the rest of the lands comprised in the deed of January 1809), should be and enure to the use of Morgan Busteed, his executors, &c., for a term of five hundred years, for the purposes and trusts therein mentioned; and from and after the end, expiration, or other sooner determination of the said term, and in the mean time subject thereto, to the use of William Collis, his heirs and assigns. The trusts of the term of five hundred years were declared to be that the said Morgan Busteed should by the perception of the rents, issues and profits of the premises, or by demise, sale, or mortgage thereof, or a competent part thereof, for the whole or any part of the said term, &c., raise and levy an annuity therein mentioned (and which had been charged on all the lands), and all arrears thereof; and upon further trust, that if the said John James Hickson should by any legal process be obliged to pay, or, to prevent legal suit, should voluntarily pay, any debt or charge affecting the said lands of Lead and Ballintobeing (the lands sold to Hickson), or either of them, and not included in the schedule indorsed on the said deed of conveyance of said lands of Lead and Ballintobeing, that then and in such case and as often as it should so happen, the said Morgan Busteed should, by receipt or perception of the rents, or by demise, sale, or mortgage of the whole or any part of the said term, raise as much money as might be sufficient to save harmless the said lands so granted (to Hickson), from the payment of the said debt or charges, and should pay to the said John James Hickson, his executors, &c., such sums as he or they should have paid in discharge of any debts or encumbrances affecting the said lands, and not included in the schedule indorsed on said deed of conveyance, whether for principal, interest, or costs, with interest at £6 per cent. on the sums so paid, and also such costs as the said John James Hickson might be put to on account of such debts or encumbrances; and upon further trust, to permit and suffer the said William Collis, his heirs and assigns, to have, receive, and take the surplus rents, issues and profits of the said lands and premises, which might remain after the execution of the trusts aforesaid.

Four judgments were recovered against William Collis; one of Easter Term 1817, for £824. 8s. 6d.; another of Easter Term 1818, for £147. 13s. 7d.; and two others of Trinity Term 1820, for the sums of £364. 10s. 8d., and £112. 12s. 9d., respectively; all which judgments had been assigned to John Collis.

By indenture of the 17th of April 1830, made between the said John Collis, the defendant William Collis, John James Hickson, and A. B. Rowan, reciting that there was due to John Collis, on foot of these judgments, £1273. 17s. 11d., and that he had applied for payment, but consented to accept payment as therein mentioned, and that it was agreed that the judgments should be assigned to a trustee...