Ker v Ker

• Jurisdiction: Ireland
• Judgment Date: 16 November 1869
• Date: 16 November 1869
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

KER

and

KER.

Averall v. Wade Ll. & Goo. Temp. Sudgen, 253.

Hartley v. O'Flaherty Ll. & Goo. Temp. Plunket, 208.

Handock v. HandockUNK 1 Ir. Ch. Rep. 441.

Ellison v. Ellison 6 Ves. 656.

Ward v. AudlandENR 8 Beav. 201.

Tweddell v. Tweddell 2 B. C. c. 100.

Evelyn v. EvelynENR 2 P. Wms. 663.

Dickenson v. BurrellENR 35 BEav. 257, 263.

Clavering v. ClaveringENR 2 Vern. 473.

Goodwin v. Goodwin 1 Ch. Rep. 92.

Stock v. AylwardUNK 8 Ir. Ch. Rep. 429.

King v. JonesENR 5 Taunt. 418.

King v. JonesENR 5 Taunt. 418.

Ward v. AudlandENR 8 BEav. 210.

Clavering v. ClaveringENR 2 Vern. 475.

Averall v. Wade Ll. & E. temp. Sugden, 252.

Hancock v. Hancock 1 Ir. Ch. R. 444.

Hales v. CoxENR 32 BEav. 118.

King v. JonesENR 5 Taunt. 427.

Stock v. AylwardUNK 8 Ir. Ch. Rep. 435

William Harbet's CaseUNK 3 Rep. 11, b.

Aicken v. Macklen 1 Dru. & W. 633.

Harbet's CaseUNK 3 Rep. 11, b.

Cook v. ArundelENR Hard. 87.

Eyre v. GreeneENR 2 Coll. 527.

Long v. ShortENR 1 p. Wms. 403.

Young v. HassardENR 1 Jon. & Lat. 466.

Tombs v. RochENR 2 Coll. 490.

Aicken v. Macklin 1 Dru. & W. 621.

Strange v. Hawkes 4 DeG. & J. 652.

Dickenson v. BurrellENR 35 Beav. 257.

Voluntary Deed — Covenant for further Assurance — Devise — Contribution to paramount Charge affecting both granted and devised Estates — Marshalling in favour of a Volunteer.

Von. IV.] EQUITY SERIES. tions. Of course, it follows that the Petitioner is entitled to half, at all events, of the fund ; the other half must be retained, pendÂÂing inquiries after the Petitioner's brother William, or his repreÂÂsentatives. Order reversed. 15 Ch. App. 1869. In re DIXON'S TRUSTS. Solicitor for the Appellant : Mr. H. O. Neilson. Solicitor for the Minors : Mr. Stephenson. Ch. App. 1869. Voluntary Deed-Covenant for further Assurance-Devise-Contraution to paramount Charge afecting both granted and devised Estates-Marshalling Nov. 16. in favour of a Volunteer. A., being seised in fee of L. and other lands, subject to a charge not created by himself, by a voluntary deed conveyed away the lands of L., and covenanted that he, his heirs, and assigns, would do any further act for the better and more effectually assuring the said lands to the grantee, his heirs, and assigns ; and he devised the other lands. The charge was paid off by the sale of part of the devised lands. Held (reversing the decree of Tun MASTER OP THE ROLLS), that the devisee was entitled to contribution from the owner of L. THIS was an appeal from a decree of the late Master of the Rolls (Mr. Walsh). Alexander Ker, being seised of certain estates in the county of Monaghan (including the lands of Lisalea), made his will, dated the 27th May, 1814, and thereby devised all his real and personal estates to his brother, Andrew Ker, subject to certain annuities created by his will ; and he directed that the said estates so devised to his brother should be subject and liable to all his just debts. The testator died shortly after making his will. At the time of his death he was indebted to George Vaughan on foot of a judgÂÂment of 1811 for £2000. Andrew Ker entered into possession of the estates so devised to him, and paid off a portion of the judgÂÂment debt, leaving £1283 ls. 6d. due on foot thereof ; and he also paid the annuities, two of which determined in his lifetime. Andrew Ker, by his will, dated the 14th of December, 1841, devised all his freehold and personal estate to three trustees upon 16 THE IRISH REPQRTS. [I. R. Ch. App. trust, in the first place, out of his personal estate, and if the same 1869. should be insufficient, then out of the rents and profits of his said KER real estates to pay his just debts and legacies, and, subject thereto, v. as to a portion of his real estates (including the lands devised to KER. him by Alexander Ker), he devised the same to Mary Anne Foster for life, with remainder to her first and other sons successively in tail, with remainder to her daughters in tail, with remainders over ; and after reciting that he was indebted to his sister, Mary Foster, in the sum of £9000, the testator charged the same, with interest, upon his estates in the county of Monaghan, and directed the principal thereof to be paid by certain annual instalments. By a voluntary deed, dated the 6th of April, 1846, Andrew Ker conveyed the lands of Lisalea to Thomas Stopford and his heirs. This deed contained no covenant against incumbrances or for good title ; but the grantor covenanted for himself, his heirs and assigns, that he, his heirs and assigns, would, from time to time, and at all times thereafter, make, do, and execute any furÂÂther or other act, deed, assurance, or conveyance, for the further, better, and more effectually granting the premises with their apÂÂpurtenances, to the said Thomas Stopford, his heirs and assigns, as by him or them should be required. On the 20th of April, 1846, Andrew Ker made a codicil to his will, whereby, after reciting the conveyance to Stopford, he, in ratification thereof, revoked his will, so far as the same would operate as a devise of Lisalea ; and he directed all persons taking any benefit under his will to acquiesce in the disposition he had made of the said lands. Andrew Ker died on the 30th of May, 1846. In 18M Mary Anne Foster married Andre Allen Murray Ker ; and there was issue of the marriage-Andrew Ker, who died an infant, and two daughters. In June, 1857, a portion of the estates devised by the will of Andrew Ker were sold in the Ineumbered Estates Court, and out of the proceeds of the sale the sum due on foot of the judgment of 1811 was paid off. From the death of Andrew Ker, the subsisting annuities, devised by the will of Alexander Ker, were paid out of the rents and profits of the other lands, Lisalea not having in anyÂÂwise contributed thereto. "VoL. IV.] E4IJITY SERIES. 17 Immediately after the execution of the voluntary deed of the Ch. App. 6th of April, 1846, Thomas Stopford entered into possession of the 1869. lands of Lislea, and continued in possession until, in the year 1860, KER he sold the said lands to Andre Allen Murray Ker. Upon the v. KER. treaty for the said sale it was agreed that Andre A. M. Ker should take the lands of Lisalea, subject to whatever liability the said lands were under to contribute to the judgment of 1811, and to the annuities devised by the will of Alexander Ker ; and in consideraÂÂtion thereof, a reduction was made in the purchase money. By an indenture, dated the 17th of April, 1860, Thomas Stopford granted the lands of Lisalea to Andre A. M. Ker, his heirs, and assigns, and covenanted that the said lands were free from incumÂÂbrances, except such as were created by the will of Alexander Ker. A bill was filed by Mary Anne Ker (otherwise Foster), her daughters, and other persons entitled in remainder to the real estates devised by the will of Andrew Ker against Andre A. M. Ker and certain formal parties, praying that it might be declared that the lands of Lisalea were bound by the judgment of 1811; and that they were, along with the other lands of which Alexander Ker was seised, charged with the said judgment and with the anÂÂnuities devised by his will, and that they were liable to have conÂÂtributed with the said other lands towards the payment of the said judgment and annuities ; and the bill further prayed for certain consequential accounts and relief. The case was heard on bill and answer before the late Master of the Rolls ; and on the 30th of June, 1869, his Honor made a decree dismissing the bill, but without costs (1). From that decree the Plaintiffs now appealed. Mr. Leech, Q. C., for the Appellants. The question in this case is-whether Andre A. M. Ker, the Respondent in appeal, who is grantee of the lands of Lisalea under a voluntary deed, is bound to contribute, along with the Appellants, the devisees of other lands under the will of the grantor, to a common charge affecting both the granted and devised lands, and subject to which they came to the grantor. The Appellants contend that they have (1) I. R. 3 Eq. 489, VOL. IV. THE IRISH REPORTS. (I. R. a right to contribution ; while the Respondent insists that, as grantee under the deed of 1846, he has a right to have the lands of Lisalea exonerated from the charge by the other lands which Andrew Ker retained at the date of that deed, and which his deÂÂvisees, the Appellants, are now in possession of. We say that the deed of 1846 gives him no such right. That is a voluntary deed, and contains no covenant against incumbrances. Apart from the covenant for further assurance (whatever effect that may have), the deed of 1846 is nothing but a mere voluntary grant of the lands of Lisalea; and conveyed nothing to the grantee except those lands, subject to whatever incumbrances then affected them. No case is to be found where the principle of marshalling was applied, in which there was not either an express covenant against incumÂÂbrances, or an implied covenant to that effect, arising from the cirÂÂcumstance that the conveyance was for valuable consideration. It is not by force of the grant that the grantee obtains the equity to throw the incumbrance on the residue of the estate ; but by force of the grantor's covenant, whether express or implied, that the portion of the estate conveyed was free from incumbrances. In Averallv.Wade (1) there was not only a valuable consideration,but an express covenant against incumbrances; and, at p. 259, Lord S t. Leonards points out that a valuable consideration gives the same equity to marshal as an express covenant. *In Bartley v. O'FlaÂÂherty (2) the deed was for a valuable consideration. In Story's Equity Jurisprudence, section 1233, the right of a prior purchaser to throw the whole charge upon a subsequent purchaser is doubted; see also the observations of Lord Chancellor Brady in Handeoek v. Handcock (3), pp. 474-5. In Ellison v. Ellison (4), and Ward v...