Howlin v Sheppard

• Jurisdiction: Ireland
• Judgment Date: 06 July 1872
• Date: 06 July 1872
• Court: Chancery Division (Ireland)

V. C. Court.

HOWLIN

and

SHEPPARD.

Kellett v. Kelly 5 Ir. Eq. R. 34.

Kirwan v. Kennedy Ir. R. Eq. 472.

AnonymousENR 3 Atk. 486.

Anonymous 5 Ir. Eq. R. 245.

Callanan v. Blake 6 Ir. Eq. R. 100, 353.

Dunne v. Doyle 10 Ir. Ch. R. 502.

Fitzmaurice v. Murphy 8 Ir. Ch. R. 363.

Murtagh v. Tisdall 2 Ir. Eq. R. 41.

Foss v. Foss 15 Ir. Ch. R. 215.

Dillon v. Dillon 4 Ir. Ch. R. 102.

Kilworth v. Mountcashell 7 Ir. Ch. R. 60.

Re Whyte 7 Ir. Ch. R. 61, n.

Pettinger v. AmblerELR L. R. 1 Eq. 510.

Stillman v. WeedonENR 16 Sim. 26.

Thomas v. JonesENR 2 J. & H. 475; 1 De. G. J. & S. 63.

Gressley v. Adderly 1 Swanst. 573.

Kirwa v. Kennedy I. R. 3 Eq. 472.

Woodroffe v. Greene 15 Ir. Ch. R. 176.

Baldwin v. Baldwin 6 Ir. Ch. R. 156.

Beckford v. Wade 17 Ves. 87.

Bell v. Bell Ll. & G. Temp. Plunket, 44.

Coote v. O'ReillyIR 1 J. & L. 455; 7 I. E. R. 356.

Kellett v. KellyIR 5 I. E. R. 36.

Toft v. StephensonENR 7 Hare, 1.

Payment by Remainderman of Interest which accrued during preceding Life Estate — Remainderman's Right to be Recouped out of Life Estate — Effect of Payment into Court — Statute of Limitations.

38 THE IRISH REPORTS. [I. V. C. Court. effect to create a new covenant for renewal at a different rent. 1871. There is no such evidence in this case, and I think it sufficiently Ex parte appears that the variation in amount arose from the practice of MITCHINSON. the quit-rent being paid by the lessee and deducted from the rent payable by him, and that the less amount was in consequence inserted by mistake. The only other matter- is as to the sum of ten shillings ; that seems to have been a mere mistake in calculaÂÂÂtion, and is, I think, also governed by Ex parte Ifeatinge. I also think that upon the authority of that ease the Petitioner is entitled to have the lesser rent reserved in the fee-farm grant during the continuance of the two lives still in existence in the present reÂÂÂnewal. After that the rent must be a sum equivalent to £38 Irish. As the Petitioner has been wrong in the view he has taken, and thereby justified the Respondents in refusing to make the fee-farm grant he demanded, he must pay the costs of this proceeding. Solicitor for the Petitioner : Mr. J. H. Townsend. 'Solicitors for the Respondent : Messrs. Falkiner and Hone. . HOWLIN v. SHEPPARD. Payment by Remainderman of Interest which accrued during preceding Life Estate-Remainderman's Right to be Recouped out of Life Estate-Efect of Payment into Court-Statute of Limitations. H., a remainderman, paid with his own money, after he came into possesÂÂÂsion, interest which had accrued, during the preceding estate for life, upon charges affecting the inheritance :-Held, 1. That his executor was entitled, in 1870 (as against the personal representative of the tenant for life), to be reÂÂÂcouped out of a fund in Court, the produce of rents of the life estate brought in, in 1815, by a receiver appointed in an incumbrancer's suit instituted against the tenant for life ; 2. that the fund having remained in Court, during the whole period from 1815 to 1870, in usum ju s habentium, the claim of H.'s executor was not barred by the Statute of Limitations. BILL filed by the Plaintiff, as executor of James Howlin, praying, amongst other relief, an account of the payments made by James Howlin, as remainderman, for interest which accrued Vol,. VI.] EQUITY SERIES. 39 during the preceding estate for life, on foot of charges affecting V. C. Court. the inheritance of certain lands, and for payment out of a fund 1870. in Court, the produce of rents of the life estate brought in in 1815 Howmisi by a receiver appointed in an incumbrancer's suit instituted against SHEPPARD. the tenant for life, who died in 1813. The facts, so far as they are material for the purpose of this report, sufficiently appear in the judgment. Mr. May, Q. C., and Mr. J. F. Walker, for the Plaintiff. The Plaintiff's testator paid off all the incumbrances with his own money, and the Plaintiff has now a right to be recouped out of the life estate : Kellett v. Kelly (1) ; Kirwan v. Kennedy (2). The Statute of Limitations is no bar, for James Howlin, being both executor and remainderman, was both the person to pay and to receive. We admit that the old suit of Howlin v. Cullimore is out of Court ty lapse of time, but that does not affect our right to mainÂÂÂtain this suit : Anonymous (3) ; Anonymous (4) ; Callanan v. Blake (5); Dunne v. Doyle (6). When a fund is once in Court, in usum jus habentis, the Statute does not run : Fitzmauriee v. Murphy (7); Murtagh v. Tisdall (8) ; Foss v. Foss (9) ; Dillon v. Dillon (10) ; Kilworth v. Mounteashell (11) ; Re Whyte (12). As to the execution of the power to charge the £1600, they cited Pettinger v. Ambler (13) ; Stillman v. Weedon (14) ; Thomas v. Jones (15). Mr. Ball, Q.C., Mr. Walsh, Q.C., and Mr. E. Gibson, for the Defendants. The character and history of the original suit show that James Howlin had no intention of making a claim to this money. He (1) 5 Ir. Eq. R. 34. (2) Ir. R. 3 Eq. 472. (3) 3 Atk. 486. (4) 5 Ir. Eq. R. 245. (5) 6 Ir. Eq. R. 100, 353. (6) 10 Ir. Ch. R. 502. (7) 8 Ir. Ch. R. 363. (8) 2 Ir. Eq. R. 41. (9) 15 Ir. Ch. R. 215. (10) 4 Ir. Ch. R. 102. (ii) 7 Ir. Ch. R. 60. (11) 7 Ir. Ch. R. 61, n. (12) L. R. 1 Eq. 510. (13) 16 Sim. 26. (14) 2 J. & H. 475; 1 De G. J. & S. 63. 40 THE IRISH REPORTS. [I. R. V. C. Court. might have been entitled to maintain a suit as remainderman to 1870. compel the tenant for life to keep down the interest, but that was HowLui not the suit he instituted. The suit he instituted was an incum. . brancer's suit, as personal representative of John Cullimore, the v younger, on foot of his charge of £1600. The object of the suit was clearly to oust the custodiam creditors who had got into possesÂÂÂsion. The money was brought into Court in that suit for the parties in the rights they had in that suit. If James Howlin had sued as remainderman, he might be entitled to this money on paying off the incumbrances affecting the life estate, but he sued as an incumbrancer, and his representatives cannot set up any higher equity now : Gressley v. Adderly (1). The suit of Howlin v. Cullimore was dismissed out of Court many years ago by rule 31, 1843 ; and when it was dismissed, the personal representative of the tenant for life would have been entitled to draw this money out of Court : Foss v. Foss (2).. If James Howlin had any claim, he should have come forward in the lifetime of the tenant for life to claim this money. Now both he and the tenant for life are dead, and there is no evidence that in fact James Howlin paid off any arrears of interest at all. As the person entitled to the fee and absolute interest in the leaseÂÂÂholds, he was, of course, the person bound to pay the principal, and can make no claim against this fund in respect of it. The Court cannot now say what would be the equities if the tenant for life and James Howlin were both alive, and it is clear that if this sum was part of the assets of J. M. Cullimore, and that the present Plaintiff filed a bill against the Defendant Sheppard, as his repreÂÂÂsentative, claiming as creditors for advances made, that the Statute of Limitations would be a bar : Kirwan v. Kennedy (3) ; Woodroffe v. Greene (4). Then the claim of the Plaintiff, as it is, is barred by the Statute of Limitations. This money was paid into Bank in 1815. James Howlin went into possession of the lands as soon as J. M. CulliÂÂÂmore died in 1813, and must have paid the arrears of interest very soon after. He might then have had a right to be repaid out of (1) 1 Swanst. 573. (3) I. R. 3 Eq. 472. (2) 15 Ir. Ch. R. 215. (4) 15 Ir. Ch. It. 176. VOL. VI.] EQUITY SERIES. 41 this fund, but had no right to the specific fund, and the operation V. C. Court. of the Statute is only prevented when the party is entitled to the 1870. very specific fund: Kirwan v. Kennedy (1) ; Baldwin v. Baldwin (2). Howlig They also cited Beekford v. Wade (3) ; Bell v. Bell (4). SHErrARD. Mr. M. Barry, for the Attorney-General, admitted that he could not substantiate now any claim on behalf of creditors in eustodiam. THE VICE-CHANCELLOR: The subject matter of this suit is a sum of £2160 7s. 2d., April 21. Government 3 per cent. Stock, and £38 10s. 2d. cash, being the accumulated amount of the slim of £600 98. id., which was brought into Court in the cause of Nowlin v. Cullimore, under an order of the 25th January, 1815. It was the balance in the hands of the ReÂÂÂceiver in that cause, and consisted of the rents received out of the lands mentioned in the bill during the life of Josiah Martin CulliÂÂÂmore, the tenant for life. The suit of Nowlin v. Cullimore was instituted by James Howlin and others, as executors and legatees named in the will of John Cullimore, to raise a charge of £1600 affecting the inheritance of the lands of which Josiah M. Cullimore the elder was the tenant for life in possession, and for an account of the debts affecting that life estate, for a sale, and for a ReÂÂÂceiver. When that suit was instituted, James Howlin, the elder, one of the Plaintiffs therein, was next tenant in remainder of the lands, of which Josiah M. Cullimore was tenant for life ; but the bill cerÂÂÂtainly was not based on the equity subsisting between a tenant for life and remainderman, and was a simple incumbrancer's suit. A Receiver was appointed in that cause, by order of the 3rd July, 1812, who went into receipt of the rents of the lands ; but in a year and a half afterwards, and before the cause came on for hearing, Josiah M. Cullimore, the tenant for life, died, and James Howlin, the elder, one of the Plaintiffs in the cause, became entitled in possession. The Receiver was not formally discharged until the (1) I. R. 3 Eq. 472. (3) 17 Ves. 87. (2) 6 Ir. Ch. R. 156. - (4) Ll. & G. Temp. Plunket, 44. 42 THE IRISH REPORTS...