Kelly v Jackson, Graham and Trocke

• Jurisdiction: Ireland
• Judgment Date: 17 April 1849
• Date: 17 April 1849
• Court: Rolls Court (Ireland)

Rolls.

KELLY

and

JACKSON, GRAHAM and TROCKE.

Vent v. PaceyENR 4 Russ. 193.

Greenough v. Gaskell 1 M. & K. 98.

Lord Walsingham v. GoodrickeENR 3 Hare, 122.

Desborough v. Rawlins 3 M. & Cr. 515.

Herring v. CloberyENR 1 Phil. 91.

Woods v. WoodsENR 4 Hare, 83.

Blenkinsopp v. BlenkinsoppENRENR 10 Beav. 143; S. C. on Appeal, 2 Phil. 607.

Harris v. HarrisENR 3 Hare, 450.

Foley v. Hill 3 M. & Cr. 475.

Kington v. Gale Finch, 259.

Duffin v. Smith Pea. N. P. ca. 108.

Dormer v. FortescueENR 2 Atk. 284.

Le Texier v. The Magravine of Anspach 15 Ves. 164.

Bowles v. Steward 1 Sch. & Lef. 109, see p. 227.

Beadles v. BirchENR 10 Sim. 232.

Roddy v. WilliamsENR 2 Jo. & Lat. 21.

6 Ves. 557.

Duffin v. Smith Peakeƒ€™s N. P. Cas. 108.

1 M. & K. 103.

CASES IN EQUITY. 129 1849. Rolls. KELLY v. JACKSON, GRAHAM and TROCKE. IN this case the defendant John Graham having put in a plea and answer to the bill, the plea was set down for argument. The bill stated that, by indenture of lease bearing date on the 30th of November 1811, Molesworth Greene demised to John Fyan the house, land and garden known by the name of Mount Feller House, in the barony of Rathdown, in the county of Dublin, for three lives, with a covenant for perpetual renewal. The bill (after setting out several assignments of the said lease) stated, that on the 4th of March 1841, John Dawson Duckett (in whom the estate and interest in the lease was then vested), by indenture of that date, and in consideration of 1500, assigned the said demised premises to the defendant William Trocke. The bill then stated that some time in the year 1842, the plainÂÂtiff was employed by the said William Trocke to build a dwelling-house, and to make certain other improvements on the demised premises, which he accordingly did, and that William Trocke not having paid the plaintiff for the work so executed for him, the plaintiff brought an action against him to recover the amount of his claim. The bill then stated that notice of trial was served on the 24th of January 1848, for the 1st of February following. That on the 12th of February in the said year, the plaintiff obtained a the action against William Trocke for 435. 10s. 5d., 130 CASES IN EQUITY. with his costs, and caused judgment to be entered as of Easter Term 1848, in the Court of Queen's Bench, for 576. 3s. 10d., including the costs. The bill then stated that the plaintiff issued an elegit, and was about to extend the interest of William Trocke in the lease, when he was prevented from so doing by the management and proceedings of William Trocke, and the other defendants hereinafter stated. The bill then stated that on the 21st of February 1848 (being nine days after the verdict was obtained by the plaintiff), William Trocke caused two several leases of the said house, lands and premises to be registered, which respectively appeared from the registered memorials thereof to bear date on the 1st of February 1848 (being the clay on which the notice of trial was served), and which leases appeared from the memorials to have been made between the defendant William Trocke of the one part, and the defendant Robert Jackson of the other part. The bill then stated that the said Robert Jackson was the stepÂÂfather of William Trocke, and that by one of the said leases William Trocke purported to demise to Robert Jackson a certain part of the said lands and premises, for two lives, at the rent of 122 a-year ; and by the other lease purported to demise another part of the said lands and premises, for the same two lives, at a rent of 14, and for a consideration of 280, alleged to have been paid by Robert JackÂÂson to William Trocke. The bill then stated that at the time the said leases respectively professed to bear date, namely, the 1st of February 1848, William Trocke was seriously indebted to various persons, and was resident at Brussels, out of the jurisdiction of the Court, having been obliged to leave this country to avoid his creditors, and that he so continued out of the country up to and after the 12th of February 1848, when the plaintiff•obtained his said order. The bill then stated that it appeared, from the memorials of the said leases, that they were respectively witnessed by the defendant John Graham, as to the execution thereof by William Trocke, and were registered on the affidavit of the said John Graham, who was the attorney for William Trocke in the action. CASES IN EQUITY. 131 The bill further stated that John Graham was resident in Dublin on the 1st of February 1848, the day when the leases were made to bear date, and when the trial was expected to take place, and continued to reside in this country until the 12th of February 1848, when the plaintiff obtained the verdict, and that therefore it was impossible that John Graham could have been a witness to the execution of the leases by William Trocke on the 1st of February 1848, but that the same were really executed after the plaintiff had obtained the verdict in order to defeat the plaintiff's demand. The bill then stated that the two leases were leTared by John Graham, and at his suggestion, as the attorney of William Trocke, with the view and for the sole purpose of defeating the plaintiff's rights, and of preventing him from having recourse to the premises comprised therein, for payment of the amount of the verdict and judgment, and that John Graham was privy to'and cognizant of the fraud so intended to be committed upon the plaintiff, and that previously to the execution of the leases John Graham caused a case to be prepared, and had it submitted to Robert Holmes, Esq., BarÂÂrister-at-Law, for the purpose of being advised by him whether, if the leases were made, they would have the effect of protecting the premises comprised therein against the payment of the plaintiff's demand, and of preventing the plaintiff from recovering the amount due him out of the premises. The bill then stated that the two leases were made at a gross undervalue, and set out certain matters to establish the case of undervalue, and further stated that the 280 consideration was never paid on the second lease, and that even if it had been paid, several hundred pounds more could have been obtained for such a lease. The bill further stated that the leases were not made bona fide, but were colourable only, and really made in trust for the defendant William Trocke, and ought not to be set up as against the plaintiff's demand. The bill then contained interrogatories in relation to the said several statements. The seventh interrogatory was in these terms :-" Was not the said John Graham privy to and a party to 132 CASES IN EQUITY. the fraud intended to be practised by the defendants upon the comÂÂplainant? and did or did not the said defendant John Graham, previous to, or at any other time and when, before the said two leases were executed, prepare, or cause to be prepared, a case ? and did or did not the said...