John Young v William Kelly Wilton

• Jurisdiction: Ireland
• Judgment Date: 03 November 1846
• Date: 03 November 1846
• Court: Rolls Court (Ireland)

Rolls.

JOHN YOUNG

and

WILLIAM KELLY WILTON.

Gressley v. Adderly 1 Swanst. 571.

Harrison v. Duigman 2 Dr. & War. 295.

AnonymousENR 2 Atk. 15.

Law v. Bagwell 4 Dru. & Wat. 398.

St. John v. BoughtonENR 9 Sim. 219.

Knox v. KellyUNK 6 Ir. Eq. Rep. 285.

Pigott v. JeffesonENR 12 Sim. 26.

Dillon v. CruiseUNK 3 Ir. Eq. Rep. 70.

Attorney General v. Persse 2 Dru. & War. 67.

Burroughs v. M'CreightUNK 7 Ir. Eq. Rep. 49.

Attorney-General v. WybrantsUNK 7 Ir. Eq. Rep. 587.

Wrixon v. Vize 3 Dru. & War. 119.

Fergus v. Gore 1 Sch. & Lef. 107.

Francis v. GroveENR 5 Hare, 39.

Dearman v. WycheENR 9 Sim. 570.

Burke v. Jones 2 VEs. & Beav. 275.

Mills v. MillsUNK 6 Ir. Eq. Rep. 110.

Mara v. TibeaudoUNK 7 Ir. Eq. Rep. 556.

Callanan v. BlakeUNK 6 Ir. Eq. Rep. 100, 535.

Child v. FederickENR 1 P. Wms. 266.

Foster v. Hodgson 9 Ves. 180.

The Commissionaries of Donations v. WybrantsENR 2 Jo. & Lat. 198.

Foster v. Lynch 3 Ridg. Par. Cases, 341.

Foster v. Hodgson 19 Ves. 180.

Mara v. Tibeaudo 7 Ir. Eq. Rep.

Delany v. Mansfield 1 Hog. Rep. 234.

Callanan v. BlakeUNK 6 Ir. Eq. Rep. 100.

Mills v. MillsUNK 6 Ir. Eq. Rep. 106.

Woods v. Creaghe 1 Hog. Rep. 86.

10 CASES IN EQUITY. 1846. Rolls. JOHN YOUNG v. WILLIAM ICKLLY WILTON. Nov. 3. A trust in a Tins case came before the Court upon demurrer taken to the bill will for the for want of equity by William Kelly Wilton, one of the defendants. payment of debts,althongh an express trust, does not fall within the 25th section of the 3 & 4 W. 4, 0.27, the subÂÂject of that section being land or rent, in which it is impossible, from the interpretaÂÂtion clause, to comprise a gross sum of money charged on the estate. Whether, where there is a trust for payment of debts, the case falls within the 40th section- Qucere? Whether a devise of lands charged with, or subject to testator's debts, creates an express trust- Qua're See Francis v. Grover, 5 Hare, 39. The plaintiff, by his bill, filed in 1846, to raise the amount of a judgment of 1781, did not state that the judgment bad been ever revived, or that any payment had been made of any part of the principal or interest, nr that there was any acknowledgment in writing of the right thereto, but stated a suit instituted for the same purpose in 1808 by the persons then entitled to the judgment, against the executors and devisees of the conuzor and others, which bill stated that the conuzor of the judgment died on the 3rd of March 1803, having first made his will, duly attested, and thereby charged his debts on his real estate, and created an express trust for payment of his debts. The date of the will was not stated. Held on demurrer, that the Statute of Limitations was a bar to the plaintiff's demand, a devise for payment of debts not preventing the setting up the statute where the time had run before the testator's death. Held also, even assuming the plaintiff was entitled to the benefit of this suit of 1808, that nothing was stated on the bill to take the case out of the operation of the 8 G. I, c. 4, the statute in force when the suit of 1808 was instituted. The bill stated that the executors and others answered the bill of 1808, but the devisees of the real estate " stood out process of contempt, and thereupon a decree on sequestration was obtained against them ;" but the nature of the decree was not stated. After the decree on sequestration, the party against whom it was, obtained died, and a bill of revisor and three amended bills were filed against W., who derived under the party against whom the decree on sequestration was obtained ; but the suit was never brought to a hearing against any of the defendants who bad answered. By the practice of the Court, during the pending of such former snit an absolute decree on sequestration could not be obtained against a party until the suit was heard against the answering defendants. Held, that the statement in the bill, that there was "a decree on sequestration," most be taken to be a conditional decree, which, upon the facts stated, was the only decree which could, according to the practice of the Court, have been obtained; that such conditional decree fell to the ground by the death of the party against whom it was obtained, and the subsequent proceedings against W.; and that W., who bad demurred to the present bill, was not precluded by such statement, that there was " a decree on sequestration," from relying on the Statute of Limitations. Held also, that such conditional decree did not prevent the operation of the 81st General Order, and that the suit of 1808 was dismissed before the present suit was instituted, by the operation of such General Order. Held also, that the statement, that there had been "a decree on sequestration," without stating what that decree was, and which might have been consistent with the relief now prayed, was altogether vague and uncertain, even though it were to be considered to have been an absolute decree. Held also, that the defence of the former Statute of Limitations (8 G. 1, c. 4) might have been relied on by demurrer to the bill of 1808; and that statute being now repealed, and there being nothing on the face of the bill to show that the judgment of 1781 was not barred when the bill of 1808 was filed, the present plaintiff could derive no benefit from such suit. Held also, that the appointment of a receiver in a cause will not (except under particular circumstances) take the case out of the operation of the 81st General Order, whether as relates to the lands or the funds brought into Court by the receiver. CASES IN EQUITY. 11 The bill, which was filed in May 1846, stated, that Sarah Farrell, administratrix of James Farrell deceased, who was in his lifetime a creditor by judgment of Edmond Kelly deceased, filed her bill on the 9th of January 1808, in the Court of Chancery, as well on behalf of herself as of the other creditors of the said Edmond Kelly, against the real and personal representatives of the said Edmond Kelly, and against others ; and that said bill charged, that on the 12th of February 1777, the said Edmond Kelly mortgaged certain lands in the county of Galway, producing the clear rental of 1214. 3s. 7d. a-year, to William Brightwell Sumner, to secure the sum of 13,000, with 5 per cent. interest; and that the said bill further stated, that the said Edmond Kelly, being entitled to the equity of redemption in the said mortgaged premises, and being indebted to one James Farrell in the sum of 700, executed a bond and warrant in the penalty of 1400 to the said James Farrell, on the 20th of February 1778, on which bond judgment was entered in Easter Term 1781. That said bill further stated, that said E. Kelly died on the 3rd of March 1803, having by his will, duly executed, charged his debts on the equity of redemption in said lands, and that by his said will he created an express trust for the payment of his debts, and amongst others, of the said debt due to the said James Farrell. That the said bill further stated that the said James Farrell died intestate in July 1788, and that said Sarah Farrell was his widow and legal personal representative. The present bill stated, that the defendants in said suit of Sarah Farrell v. Kelly and others, were the executors of Edmond Kelly, also Thomas Wilton and Jane his wife, William Phibbs Irwin and Anne Honoria his wife (which Jane and Anne Honoria were the daughters, co-heiresses-at-law and devisees of the said E. Kelly). The executors of the mortgagee, W. B. Sumner, were also defendÂÂants in said suit, as also George H. Sumner, the heir-at-law and residuary legatee of the said mortgagee, and also one Richard Darcy, since deceased. The present bill further stated, that Wilton and wife, and Irwin and wife, were brought before the Court in Sarah Farrell's suit as the devisees of the real estate of the said Edmond Kelly ; and that Richard Darcy was brought before the Court in said suit as having entered into an arrangement with Irwin and wife and Wilton and wife for the purchase of the said real estates of Edmond Kelly, subject to the debts then affecting the same ; and the present bill stated, that it was in the bill so filed by Sarah Farrell stated, accordÂÂing to the fact, that the debt so due to the said James Farrell was returned by the vendors as one of the debts then affecting the equity 12 CASES IN EQUITY. of redemption, and which were to be discharged out of the purchase money. The present bill further stated, that said Sarah Farrell's bill prayed the usual relief and accounts, and in particular that the trusts of the will of the said Edmond Kelly might be carried into execution. The present bill then stated, that Jane Kelly, Christopher Moore and St. George Daly, who were the executors of the said Edmond Kelly, and also Richard Darcy, put in their answers in said cause of Farrell v. Kelly; and that George H. Sumner, Ralph Leicester, Sir Culling Smith, Thomas Wilton and Jane his wife, and William Phibbs Irwin, and Anne Honoria his wife, did not answer the said bill in said suit of Farrell v. Kelly, "but stood out process of conÂÂtempt, and thereupon a decree upon sequestration was obtained by the said Sarah Farrell against the said Thomas Wilton and Jane his wife, and the said William Phibbs Irwin and Anne Honoria his wife." The bill then stated, that on the 31st March 1810 the said Sarah Farrell died, and that Charlotte Farrell and Maria Farrell, having taken out administration de bonis non to James Farrell, filed a bill of revivor on the 2nd of September 1813, and that said cause of Farrell v. Kelly and others was duly revived. The bill then stated, that, by an order bearing date the 22d of May 1813, a receiver was appointed in the said revived cause over the lands and premises included in the said deed of mortgage, and then remaining unsold; "and that the said receiver or his successors in office have continued from thence to the present time in full operation and receipt of the...