Kieran v Corr

• Jurisdiction: Ireland
• Judgment Date: 21 October 1848
• Date: 21 October 1848
• Court: Court of Chancery (Ireland)

Chancery.

KIERAN

and

CORR.

Carlon v. FarlarENR 8 Beav. 525.

Crofts v. Poe 1 Jones, 540.

Kirwan v. Lord PortarlingtonUNK 8 Ir. Eq. Rep. 593.

Carlon v. FarlarENR 8 Beav. 525.

514 CASES IN EQUITY. 1848. Chancery. KIERAN v. CORR. Tins was a suit by a judgment creditor for a sale of the lands of the conusor in his lifetime. There were several other creditors on foot of judgments affecting the lands, recovered before 1840; some of which were prior and. some puisne to the plaintiff's. They-were in possession by a receiver under the Judgment Acts. The bill contained the usual offer to redeem such parties as the plaintiff should be bound to redeem. The defendant, the conusor, insisted in his answer that the bill should be dismissed, because of the existence of the other judgments prior to 1840, and therefore coming within the proviso in the 22nd section of 3 & 4 Vie. c. 105. There were some parties made defendants in respect of a family charge, who, it was admitted, were improperly made parties, if the charge was not raisable immediately. It was at first contended that it could be raised immediately, but this was not much pressed. Mr. Christian and Mr. F. W. Walsh, for the plaintiff, contended that none but the prior creditors themselves could rely on the proÂviso in the 22nd section of statute 3 & 4 Vic. c. 105, and the debtor could not take the objection ; that even if the creditors did object, the Courtt might decree a sale subject to their demands : Carlon v. Parlor (a); but to, remove all objection the plaintiff was willing to redeem them if they should require it. Mr. Hughes and Mr. W. Bourke, for the inheritor, insisted that a bill by a judgment creditor for a sale in the lifetime of the conusor could not be maintained at all where there were creditors prior to 1840, in consequence of the provision in the 22nd section of the 3 & 4 Vie. c. 105, and that this objection might be raised by the (a) 8 Beay. 525. CASES IN EQUITY. 515= conusor or any other party to the cause : Crofts v. Poe (a); Kirwan v. Lord Portarlington(b); and that it was against the settled rule of the Court to sell an equity of redemption or an estate subject to incumbrances, and thus the existence of incumbrancers whom the plaintiff could not compel to accept payment out of the proceeds of the sale rendered the relief sought impossible. Mr. Burroughs, for some prior judgment creditors, stated that they would raise no objection if they were redeemed. The LORD...