Kirkwood v Lloyd

• Jurisdiction: Ireland
• Judgment Date: 25 November 1847
• Date: 25 November 1847
• Court: Rolls Court (Ireland)

Rolls.

KIRKWOOD

and

LLOYD.

Fenny v. DuranENR 1 B. & Ald. 40.

Denn v. The Earl of AbingdonENR 2 Doug. 473.

Earl of Stamford v. NedhamENR 1 Lev. 160.

Hanger v. Fry Cro Eliz. 310.

Hunger v. Frey F. Moor. 341.

White v. White 3 Ir. Law Rep. 118, n.

Martin v. M'Causland 3 Ir. Law Rep. 113.

Farrell v. GleesonENR 11 Cl. & Fin. 702.

Putman v. BatesENR 3 Russ. 188.

Boyd v. BeltonUNK 8 Ir. Eq. Rep. 113.

The Duchess of Kingston's case Smith's Leading Cases, 1st ed., vol. 2, p. 439, et seq.

Gaunt v. WainmanENR 3 Bing. N. C. 69.

Robinson's caseUNK 5 Rep. 32, b.

Locke v. NorborneENR 3 Mod. 141

R. v. Hebden And. 389.

The Earl of DerbyENR 1 Ad. & El. 783.

Keely v. Bodkin 5 Law Rec. N. S. 224.

Sausse & ScullyENR Sau. & Sc. 211.

Finch v. Fitzgibbon 6 Law Rec. N. S. 312.

Farran v. BeresfordENR 2 Ir. Law Rep. 110; S. C. on appeal, 10 Cl. & Fin. 319.

Ryan v. CambieUNK 2 Ir. Eq. Rep. 328.

Ryan v. CambieUNK Franks v. Mason, 9 Ir. Eq. Rep. 365.

White v. White 3 Ir. Law Rep. 118, n.

Martin v. M'Causland 3 Ir. Law Rep. 113.

Putman v. BatesENR 3 Russ. 188.

Marten v. Whichelo 1 Cr. & Phil. 257.

Grenfell v. Girdlestone 2 Yo. & Col. Ex. 672.

Mahon v. Davoren 2 H. & Br. 523.

Morrogh v. Power 5 Ir. Law Rep. 505.

O'Fallon v. Dillon 2 Sch. & Lef. 20.

Burrell v. Lord EgremontENR 7 Beav. 237.

ENR See Wynne v. Styan, 2 Phil 303.

Warrens v. O'Shea 5 Law Rec. N. S. 77.

ENRENRENR See Atkins v. Tredgold, 2 B. & C. 23; Slater v. Lawson, 1 B. & Ad. 396; Way v. Bassett, 5 Hare, 55; and see Putnam v. Bates, 3 Rus. 188.

CASES IN EQUITY. 561 KIRKWOOD v. LLOYD. Interest on the judgments by p was The MASTER OF THE ROLLS. those entitled tothe lands of In this case, Mr. James M`Ternan became the purchaser under A until 1805, when j- the decree in this cause, of the lands of Ballinabrina in the county mentethe wereudg assigned to a of Leitrim. trustee for B. and M., who were tenants for life of A. No interest was actually paid from 1805 to 1837, when the judgments were again assigned, and interest paid on them until 1841. Held, That B. & M. being the parties bound to pay the interest, and also benefiÂÂcially entitled to it, there was in contemplation of equity a payment of interest from 1806 to 1837, which saved the bar of the statute as against the lands of X. Martin v. M'Causland, 3 Ir. Law Rep. 113, and Warrens v. O'Shea, 5 Law Rec. N. S. 77, observed on, and disapproved of. (a) I B. & Ald. 40. (c) 1 Lev. 160. (e) F. Moor, 341. (g) 3 Ir. Law Rep. 113. (i) 3 Russ. 188. (b) 2 Doug. 473. (d) Cro Eliz. 310. (f) 3 Ir. Law Rep. 118, n. (h) 11 Cl. & Fin. 702. (k) 8 Ir. Eq. Rep. 113. 71 562 CASES IN EQUITY. A. reference having been made to the Master to enquire and report whether a good title could be made out to the said purchaser, the Master has reported that a good and sufficient title cannot be made to the said lands and premises so purchased by the said James M'Ternan, because the several judgments, recognizances and Crown bonds, set forth in the schedule to the report mentioned, now outÂÂstanding against George Reynolds, James Reynolds and Robert Lyons (all of whom formerly held the lands in fee), affect the fee-simple of said lands, and are now incumbrances attaching thereon. Three exceptions have been taken to the report by the plaintiff; first, that the judgments, Crown bonds and recognizances, in the schedule to the report mentioned, do not, nor do any of them affect the purchased lands ; secondly, that two judgments obtained in Michaelmas Term 1738 by one Richard Taylor against George Reynolds, Esq., the one for 1000 and the other for 2000, do not affect the purchased lands. The third objection is the formal objection that the Master should have reported good title. It has been stated that the several Crown bonds and recognizances stated in the schedule to the report have been satisfied since the Master made his report, save and except the two judgments of 1738 ; and therefore the only question for the Court to decide on the objecÂÂtions to the report is, whether the two judgments of 1738 or either of them affect the fee-simple of the purchased lands, and are now incumbrances attaching thereon as found by the Master? The facts of the case as to these judgments are as follow :- In Michaelmas Term 1738, Mr. Richard Taylor obtained two judgments against George Reynolds, one for 1000, the other for 2000. George Reynolds the conuzor was, at the time of the rendition of the judgments, or afterwards, seised in fee of several denominations of lands. These lands became vested in George Reynolds the younger in fee, and in the year 1786 he conveyed a portion of them to Robert Lyons in fee. The lands so sold to Robert Lyons in 1786 are the lands which have been sold in the present suit to pay the said Robert Lyons's debts, and upon which lands the Master has found that the two judgments of 1738 are now subsisting incumbrances. No interest CASES IN EQUITY. 563 was ever paid by Robert Lyons or any person on his behalf on foot 1847. of the said judgments ; nor were the same ever revived against KIRKWOOD him or against any person having any estate or interest in that v. portion of the lands so sold to him in 1786 ; and the question is, LLOYD, whether the proceedings taken against the parties claiming the Judgment. unsold portion of the estates, or the fact of interest having been paid by such persons on foot of the said judgments, has been sufficient to take them out of the operation of the Statute of LimiÂÂtations ? That portion of the estates of the conuzor of the judgments of 1738 which was not sold to Robert Lyons in 1786 became vested in Bridget and Mary Reynolds the daughters of George Reynolds the younger, as tenants for life. Bridget Reynolds married some person whose name was not I believe stated to me, and Mary Reynolds married Mr. Peyton ; and Bridget and Mary, who were thus entitled as tenants for life to the portion of the estates which was not sold to Robert Lyons in 1786, paid off the two judgments of 1738. A deed was executed on the 1st of December 1807 by Richard Taylor the personal representative of the conuzee of the judgments of 1738 to Mr. F. M'Carthy, who was trustee for the said Bridget and Mary the tenants for life and their husbands. In 1837 Jane Peyton the daughter of Mary Peyton one of the tenants for life married Mr. Lambert, and a marriage settleÂÂment was executed on that marriage. I have not seen any copy of that settlement ; but as I have understood the statement of Counsel, the two judgments were assigned to Mr. Lambert and interest was to be paid during the lifetime of the said Bridget ; but the principal of the judgments was not to be raised in her lifetime. Mr. Lambert assigned the judgments to the Patriotic Insurance Company on the 17th of February 1840, and an affidavit having been made by Mr. Lambert, with a view of having the judgments revived, it was stated that interest was paid on the judgments until, 1805, when they were paid off by Bridget and Mary, who had become tenants for life of the estates of the conuzor of the judgÂÂments which had not been sold in 1786 to Robert Lyons. From 564 CASES IN EQUITY. that period to 1837 no interest was paid, the judgments being vested in Mr. M'Carthy as trustee for Mary and Bridget the two tenants for life, who were the persons to pay and receive interest on the judgments. But from 1837, the date of the marriage of Mr. Lambert with Jane Peyton the daughter of Mary Peyton, the interest was paid down to the year 1841, at which time the judgments were revived against the heirs of the conuzor and against the terreÂÂtenants of the portion of the estates which were not sold to Robert Lyons in 1786. Two questions arise in this case ; first, whether the revivals in 1841 of the judgments of 1738 against the co-heiresses of the conuÂÂzor of the judgments, and against the terre-tenants of the portion of the estates which was not sold to Robert Lyons in 1786, make these judgments subsisting incumbrances...