John Moore and Others, Plaintiffs, v Joseph Kelly, Christopher Moore, and Others, Defendants

• Jurisdiction: Ireland
• Judgment Date: 05 June 1917
• Date: 05 June 1917
• Court: Court of Appeal (Ireland)

John Moore and Others

Plaintiffs

and

Joseph Kelly, Christopher Moore, and Others

Defendants (1).

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1918.

Deed — Intention to defeat future Purchasers — 10 Chas. 1, sess. 2, c. 3 (Ir.) — Onus of proof — Voluntary Conveyances Act, 1893 (56 & 57 Vict. c. 21) — Valuable consideration.

By indenture, made the 11th October, 1888, J. M. purported to convey to the defendants J. K. and C. M. part of the lands of F. upon trust to pay the income to the said J. M. for life, and after his death for C. M. absolutely. J. M. also granted to R. M., his wife, if she should survive him, a rentcharge of £40 per annum, and charged the lands with sums, amounting in all to £750, for each of his three daughters and his four sons, to be payable on the death of J. M. C. M. thereby covenanted with J. M., in the event of any of J. M.'s daughters getting married, to pay the sums therein mentioned, to be charged for her or their respective benefits, to be given credit for against her or their respective charges.

By a marriage settlement, made the 14th September, 1901, which recited the indenture of the 11th October, 1888, and stated, contrary to the fact, that all the charges on the lands of F. had been paid off, the said lands were conveyed by J. M. to C. M., and J. W., his intended wife. This deed recited the intention to make provision for the payment to J. M. of J. W.'s fortune of £300.

The defendants alleged that in October, 1888, J. M. was in embarrassed circumstances, and that the indenture of 1888 had been executed with the object of hindering and defeating a particular creditor, C., that the deed was never acted upon, and was never intended to be acted upon. J. M. died on the 25th March, 1909. This action was brought to raise the charges for J. M.'s sons and daughters.

Held, by the Court of Appeal (affirming the judgment of the Master of the Rolls), that there was no evidence from which the Court could infer any intention to defeat C. or any other creditor of J. M.; that the onus of showing that the deed of 1888 was executed mala fide lay on the defendants, and that the plaintiffs were not bound affirmatively to prove that the deed of 1888 had been executed bona fide.

Held also, assuming that the deed of 1888 was voluntary, that it was not open to the defendants to rely on the protection given to a creditor under the statute 10 Chas. 1, sess. 2, c. 3 (Ir.) (corresponding to 27 Eliz. c. 4), and that there was no evidence of intent to hinder or defeat any future purchasers.

The 10 Chas. 1, sess. 2, c. 3 (Ir.), remains in operation to prevent fraud of the character described in the statute; but a presumption of fraudulent intent has been got rid of by the Voluntary Conveyances Act, 1893 (56 & 57 Vict. c. 21), which has cast the onus of showing that a deed has been executed mala fide on the person alleging it.

Held, per Ronan L.J., that the deed of the 11th October, 1888, was not voluntary, but executed for valuable consideration, namely, the covenant by C. M. to pay the sums on marriage to J. M.'s daughters.

Appeal.

By indenture, dated the 11th October, 1888, John Moore, as beneficial owner, assigned certain lands in the Co. of Westmeath to the defendants, Joseph Kelly and Christopher Moore, to hold subject to and charged with various sums, amounting to £750, in favour of the plaintiffs, the younger children of John Moore, and an annuity of £40 for his wife, Rose Moore, upon trust to pay the income and annual profits to John Moore and his assigns during his life, and, after his death, for the said Christopher Moore, his eldest son, absolutely; and in the event of Christopher Moore predeceasing John Moore without leaving issue surviving at the decease of John Moore, an event which did not happen, it was provided that the lands should be held upon other trusts, now immaterial. By the said indenture Christopher Moore covenanted with John Moore that in the event of the said daughters of John Moore, or any of them, getting married during his lifetime, with his consent, Christopher Moore would pay to such daughter or daughters, upon her or their respective marriages, the sum or sums thereinbefore mentioned, to be charged for her or their respective benefits, to be given credit for against her or their said respective charges.

By an indenture, dated the 14th September, 1901, and made between the said John Moore, of the first part; Rose Moore, his wife, of the second part; the said Christopher Moore and Julia White, of the third part; the said Christopher Moore, of the fourth part; and the said Julia Moore, of the fifth part, being the settlement executed on the occasion of the marriage between Christopher Moore and Julia White, reciting the indenture of the 11th October, 1888, and that all the charges upon the lands comprised therein, save the said annuity, had been paid off (which was not the fact), John Moore, in consideration of a promissory note for £300 made by the said Julia White and her brother, representing the wife's fortune, assigned the same lands to the said Christopher Moore and Julia White, their executors, administrators, and assigns. By this deed Rose Moore released the lands from her annuity of £40, and it was agreed that Christopher Moore should, subject to his own life interest therein, settle the lands on the said Julia White for her life, and that after the death of the survivor the lands should go to the children of the marriage as Christopher Moore and his wife should appoint, or in default of appointment equally. The lands were further charged with an annuity of £12 payable to the said John Moore and Rose Moore and the survivors of them, and they and the survivor of them were also given certain rights of residence and maintenance in the house on the lands.

The said John Moore died on the 25th March, 1909. The charges created by the indenture of the 11th October, 1888, were never paid to the plaintiffs, who were, however, maintained, educated, and advanced in life; and it was alleged by the defendants that one of the plaintiffs was paid £200, portion of the fortune of £300 belonging to Christopher's wife. The present action was brought by the plaintiffs to raise their respective charges, the defendants Joseph Kelly and Christopher Moore being sued as the trustees of the deed of the 11th October, 1888, and James Lavallin as representing the unborn issue of Christopher Moore and his wife.

The defendant Christopher Moore pleaded inter alia that “the said John Moore, deceased, was, at the time of the execution of the deed of the 11th October, 1888, in embarrassed circumstances, and in financial difficulties, and the said deed was drawn with the object of defeating and delaying his creditors, and was never intended to be acted upon, and never was acted upon, and was, with the consent of all parties interested there-under, impliedly revoked.”

The case is reported only on the question of the issue raised by this defence.

Evidence was given at the trial to the effect that at the date of the execution of the deed of the 11th October, 1888, John Moore was indebted to one Carson in a sum of over £1000, and had given a bond for the payment of the debt by instalments. It was also proved that this deed was not delivered to Joseph Kelly, the first-named trustee, but was kept in the house on the lands where John and Christopher Moore, the second trustee, resided. The parties to the second deed were aware of the execution of the first deed, the question of the charges created by the former having been discussed between them.

By his judgment, dated the 9th June, 1916, the Master of the Rolls declared the plaintiffs’ charges well charged on the lands, and directed a sale of the lands in default of payment. Hence this appeal.

Henry K.C. and Wylie K.C. (Begley with them), for the appellants other than Lavallin:—

[They contended that in effect the charges created by the first deed had been paid off.] At the date of the first deed, which was a purely voluntary one, John Moore was in such financial difficulties that the inference is irresistible that the deed was intended to defeat and delay his creditors, and was therefore avoided by the second deed. It is immaterial that the defendants are not creditors; they are in the position of purchasers for valuable consideration, and can rely on the invalidity of the first deed. The Voluntary Conveyances Act, 1893 (56 & 57 Vict. c. 21), is, no doubt, retrospective, but this only saves voluntary conveyances “if in fact made bona fide and without any fraudulent intent.” The “fraudulent intent” there referred to is not confined to an intent to defraud and deceive purchasers of lands within 27 Eliz. c. 4 (10 Chas. 1, sess. 2, c. 3, s. 1 (Ir.)), but extends to one to delay and defraud creditors within 13 Eliz. c. 5 (10 Chas. 1, sess. 2, c. 3, s. 2 (Ir.)). The onus of proving such fraudulent intent does not rest on the appellants, but the onus of proving that the deed was bona fide and without fraudulent intent rests on the respondents: National Bank v. Behan (1). This onus of proof has not been discharged.

Serjeant Matheson K.C. and Leech K.C. (Joseph O'Connor with them), for the respondents:—

The appellants admittedly were aware and had full notice of the execution of the first deed, which is recited in the second. The first deed was not avoided by the second; assuming John Moore to have been in financial difficulties, this was an honest family transaction, and was never within the mischief aimed at by the statute of Elizabeth. It was never impeached by the only creditor who is suggested to have existed. The appellants are not creditors of John Moore, and cannot impeach the deed as such under 13 Eliz. c. 5. Assuming Christopher and his wife to be purchasers for value, they can claim no relief under the 27 Eliz. c. 4...