Johanna Smith, Petitioner; Ralph Smith and William Sidney Smith, Respondents. Same Petitioner; Richard Flood Smith, Respondent

• Jurisdiction: Ireland
• Judgment Date: 12 February 1856
• Date: 12 February 1856
• Court: Rolls Court (Ireland)

Rolls.

JOHANNA SMITH,

Petitioner;

RALPH SMITH and WILLIAM SIDNEY SMITH,

Respondents.

Same

Petitioner;

RICHARD FLOOD SMITH,

Respondent.

Dundas v. BlakeUNK 11 Ir. Eq. Rep. 138.

Francis v. GroverENR 5 Hare, 39.

Commissioners of Donations v. WybrantsUNK 7 IR. Eq. Rep. 580.

Gough v. BultENR 16 Sim. 323.

Ward v. ArchENR 12 Sim. 172.

Playfair v. Cooper 23 Law Jour., Ch., 341.

Hunt v. BatemanUNK 10 Ir. Eq. Rep. 370.

Young v. Wilton 10 Ir Eq. Rep. 19.

Young v. Lord WaterparkENR 13 Sim. 199.

Cox v. Dolman 2 De G., M'N. & G. 592.

Bran v. Greenly 7 Ir. Jur. 309.

Shephard v. DukeENR 9 Sim. 567.

Knox v. KellyUNK 6 Ir. Eq. Rep. 279.

Homan v. AndrewsUNK 1 Ir. Ch. Rep. 106.

Gregson v. HindleyUNK 10 Jur. 383.

Millington v. ThompsonUNK 3 Ir. Ch. Rep. 237.

Lloyd v. Johns 9 Ves. 37.

Gifford v. Hort 1 Sch. & Lef. 386.

Wise v. Beresford 3 Dr. & War. 276.

Lord Mansfield v. Ogle 24 Law Jour., C, 700.

Doe v HorsleyENR 1 Ad. & El. 766.

Lee v. Brace 1 Lord Ray. 101.

Beresford's caseUNK 7 Rep. 41.

Fordham v. Wallis 22 Law Jour., Ch., 48.

Toft v. Stephenson 21 law Jour., Ch., 129.

Cox v. Dolman 2 D. M. & G. 592.

Jemmett v. CowleyENR 1 Saund. 112, b.

Coxe v. DayENR 13 East, 118.

Smith v. the Earl of JerseyENR 3 Bli. 290.

Havergill v. HareENR Cro. Jac. 510.

Havergill v. HareENR Cro. Jac. 512, 3rd resolution.

Doe v. HorsleyENR 1 Ad. & El. 771.

Townsend v. WilsonENR 1 B. & Ald. 608.

Townsend v. WilsonUNK 3 Mad. 261.

Hall v. DewesENR Jac. 192.

Hind v. PooleENR 1 Kay & John. 383.

Newman v. WarnerENR 1 Sim., N. S., 462.

Brassey v. ChalmersENR 19 Beav. 233; and on appeal, 4 D. M. G. 528.

Fordham v. WallisENR 10 Hare, 217.

88 CHANCERY REPORTS. 1855. Bo* JOHANNA SMITH, Petitioner ; RALPH SMITH and ' WILLIAM SIDNEY SMITH, Respondents. Same Petitioner ; RICHARD FLOOD SMITH, Respondent. Nov. 10. Dec. 3. 1856. Court of Chancery (Ireland) Regulation Act 1850. Feb. 12. Lands were TEE question in this case was whether the arrears of a certain limited to the use of one for rentcharge of £90, created by a deed of the 1st of May 1813, life, remainder to the use of which accrued due from the 1st of November 1834 to the 1st of his eldest son, and the heirs November 1840, were barred by the Statute of Limitations ? The male of such son, the Master, to whom the matter had been referred under the 15th eldest elder to be al- ways preferred section of the Court of Chancery (Ireland) Regulation Act 1850, before the younger; and in ease of failure of issue male of the said eldest son, remainderover. Semble, the eldest son took an estate tail. In 1813, lands were conveyed to the use that A and B should have, take and enjoy for ever a yearly rentcharge, with a clause of distress if it should be in arrear for twenty-one days ; and if it should happen that no sufficient distress or distresses could or might be had or found in or upon the premises on which the rent-charge was made chargeable, for or by the space of forty-one days next after the days appointed for payment, it should and might be lawful for A and B, their heirs and assigns, to enter on the said premises, and to take and seize upon the rents and profits, and the same to detain and keep, &c., for payment and satisfaction of said rentcharge and all arrears ; and A and B, their heirs and assigns, were empowered, by sale or mortgage of the lands, or out of the rents and profits, to raise such Sum or sums as should for ever thereafter be sufficient to pay and 'disÂcharge the said rentcharge. In 1842, the portion of the arrears due from NoÂvember 1834 to November 1810, were assigned to the petitioner, who, in 1853, filed a petition to raise it out of the lands charged. A died, leaving B surviving him. Semble, that an ejectment could not be sustained on the clause of re-entry, unless it was proved that no sufficient distress could be had on the premises to answer the arrears. Held, that the question whether the petitioner was or was not barred. by the Statute of Limitations, 3 & 4 W. 4, c. 27, s. 25, depended on B's right to recover in the ejectment ; and there being no evidence of want of sufficient distress on the premises, the Court gave liberty to bring an ejectment. Quare, whether the clause of re-entry, being conditional, and in the nature of a power of distress, could be made available to recover an arrear of rent, where the right to distrain is barred by the 42nd section ? Held also, that the power of sale or mortgage could not be exercised by the surÂviving trustee to raise arrears, the recovery of which by distress or action was barred by the 42nd section. (bare, whether the surviving trustee could, in any case, exercise the power ? Held also, that an acknowledgment by a tenant for life of lands charged with a rent will bind the remainderman, so as to take the case out of the 42nd section, where the right to recover the arrears is not barred ; but such an acknowledgment will not revive a demand already barred. CHANCERY REPORTS. 89 by his decretal order, bearing date the 15th of May 1855, disÂmissed the petition against the minor respondent Ralph Smith, on the ground that the Statute of Limitations set up by him was a valid defence against the petitioner who filed the petition for the recovery of the said arrears. The facts on which the question arose are fully stated in the judgment. Mr. C. Andrews and Mr. Leslie, in support of the appeal, contended, first, that a trust was created by the deed of 1813, in consequence of the power to sell or mortgage the land for the purpose of raising the arrears of the rentcharge, and therefore the case fell within the 25th section of the 3 & 4 W. 4, c. 27, and not within the 42nd section of that Act, and the arrears were not barted by that statute. On this point they cited Dundas v. Blake (a) ; Francis v. Grover (b); Commissioners of Donations v. Wybrants (c); Gough v, Bult (d) ; Ward v. Arch (e); Play-fair v. Cooper (f); Hunt v. Bateman (g) ; Young v. Wilton (h); Young v. Lord Waterpark (i); Cox v. Dolman (h); Bran v. Greenly (1); Shephard v. Duke (m); Knox T. Kelly (n). SeÂcondly, they contended that the letter of the 17th of Septem-. ber 1846, from Ellen Smith, who was tenant for life of the lands, was an acknowledgment in writing sufficient to take the case out of the statute, even though it fell within the 42nd section Homan v. Andrews (0); Gregson v. Hindley (p); Millington v. Thompson (g); Lloyd v. Johns (r) ; Gifford v. Hort (s); Wise v. Beresford (t) ; Lord Mansfield v. Ogle (u) ; Bran v. Greenly (v); (a) 11 Ir. Eq. Rep. 138. (b) 5 Hare, 39. (c) 7 Ir. Eq. Rep. 580. (d) 16 Sim. 323. (e) 12 Sim. 172. (f) 23 Law Jour., Ch., 341. (g) 10 Ir. Eq. Rep. 370. (h) 10 Ir. Eq. Rep. 19. (1) 13 Sim. 199. (h) 2 De G., M'N. & G..592. (1) 7 Ir. Jur. 309. (m) 9 Sim. 567. (n) 6 Ir. Eq. Rep. 279. (o) 1 Ir. Ch. Rep. 106. (p) 10 Jur. 383. (q) 3 Ir. Ch. Rep. 237. (r) 9 Ves. 37. (s) 1 Sch. & Let. 386. (t) 3 Dr. & War. 276. (u) 24 Law Jour., 0, 700. VOL. 5. - (v) 7 Ir...Tur. 302. 12 90 CHANCERY REPORTS. 1855. .noe v. Horsley (a); Sugden on Vendors, p. 159 ; Lee v. Brace (b); Bolls. Beresford's case (c) ; Fordham v. Wallis (d); Toft v. Stephen SMITH son (e). v. SMITE. They also contended that the power to sell or mortgage in the deed might be exercised by the survivor, although one of the Argument. trustees was dead. The MASTER OF THE ROLLS. A motion has been made on behalf of the petitioner in these matters, by way of appeal from the decretal order of William Brooke, Esq., to whom these matters were referred by the Lord Chancellor. The decretal order of the Master bears date the 15th of May 1855. The petitioner claims to be entitled to a sum of £450 late currency (equivalent to £415.7s. 8d. present currency), for six years' arrear of a certain annuity or rentcharge of £90 a-year, late curÂrency, which accrued from the 1st of November 1834 to the 1st of November 1840. That rentcharge was charged upon an undivided moiety of the lands of Coogy, Cappanaleigh and Upper and Lower Knocknahill, by a certain indenture of the 1st of May 1813, to which I shall hereafter more particularly refer. The facts of the case have- been brought before the Court in a very unsatisfactory manner ; but, so far as I have been able to collect them, that undivided moiety (which was the property of Frances Steele, under the deed of 1784, hereinafter mentioned) became vested in Ralph Smith Smith in tail, under the provisions of the deed of family arrangement of the 1st of May 1813: and the other undivided moiety is said to have vested in William Sidney Smith, under the will of Ellen Smith, and that she by her said will charged or purported to charge the said arrear on the last mentioned undivided moiety, which thus became charged on both moieties. Ralph Smith Smith having died, his undivided moiety vested in his son Richard Flood Smith, the respondent in the second matter, (a) 1 Ad. & El. 766. (b) 1 Lord Ray. 101...