Kirkwood v Lloyd

• Jurisdiction: Ireland
• Judgment Date: 29 May 1849
• Date: 29 May 1849
• Court: Court of Chancery (Ireland)

Chancery.

KIRKWOOD

and

LLOYD.

Franks v. MasonUNK 9 Ir. Eq. Rep. 358.

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

Wright v. MaddockUNK 10 Jur. 366.

Masters v. DurrantENR 1 B. & Ald. 40.

Taylor v. Lord AbingdonENR 2 Doug. 473.

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

White v. White Ibid, 118, note.

Farren v. Ottiwell 2 Ir. Law Rep. 110.

Farrell v. Glesson 7 Ir. Law Rep. 478.

O'Brien v. RamENRENRENRENR 3 Mod. 170; S. C. Comb. 103; Carth. 30; Holt, 97.

Burrell v. Earl of EgremontENR 8 Beav. 205.

O'Fallon v. Dillon 2 Sch. & Lef. 13.

Dillon and Martin v. Kennedy 1 Jebb & Sy. 579.

Mahon v. Dovoren 2 H. & B. 523.

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

Goddard v. Ingram 3 Q. B. 839.

Groves v. GrovesUNK 11 Jur. 558.

CASES IN EQUITY. 585 tion he is, has thought it was for his benefit. I therefore think it safe to make this order under the authority of those cases. Where the Court has to administer the estate of the lunatic, it is comÂÂpetent to pronounce if it shall pay the costs of all the parties in a proceeding enabling it thus to administer that estate. IN this case a reference was made to the Master as to title. The A revivor against the Master having reported against the title, the plaintiff took exceptions heir of the co nusor of a to the report. On the argument of the exceptions before the Master judgment and the terre-te of the Rolls, his Honor confirmed the report ; but on grounds nants of one estate of which different from those on which the Master's decision was founded. he had been seised does not The case at the Rolls is reported ante, vol. 11, p. 561. keep the judg ment from The case was now argued on appeal. The only objection to the being barred by the Statute title rested on two judgments, one for 1000 and the other for of Limitations as regard the 2000, entered in 1738 at suit of R. Taylor against George owners ofs ano- ther estate which had been previously sold by the connsor. Martin v. hi' Causland (3 Ir. Law Rep.) is not law. A judgment was assigned to a trustee for the benefit of the tenants for life in possession of the lands charged with it, who in 1817 caused the trustee to declare a trust for the daughter of one of them, with provisoes that no procedings should be taken on the judgment until the latter attained age or married, and that it should not be called in until the other tenant for life died. Held, that up to 1817 the same person being the hand to pay and receive the interest amounted to a payment of it, so as to prevent the Statute of Limitations applying, but that it began to run in 1817. The case of Executors Cummins v. Finn, deciding that a judgment being held in trust for the person in possession of the lands charged may be replied as a retainer of the interest in answer to a plea of the Statute of Limitations at law, cited and approved of. A charge to pay interest on a judgment made on other property by an owner of lands liable to the judgment is not sufficient to prevent the statute running in favour of the owner of other lands originally charged with it ; and though the payÂÂment of interest by the one owner before twenty years elapses would keep it alive against the other, Quere, if a payment after the twenty years will set it up again P The question on an objection to title resting on an old incumbrance is, whether it may be binding on the purchaser ; and therefore a purchaser was discharged in consequence of judgments more than sixty years old against a former owner of the estate, which were in force against other lands, though the only matter to keep them out of the Statute of Limitations against the purchaser was doubtful evidence of payÂÂment of interest nineteen years before they would have been barred. 74 686 CASES IN EQUITY. Reynolds, a former owner of the estate sold. The question was, whether they were clearly barred by the Statute of Limitations? The facts on which this question arose are fully detailed in the judgment. Mr. Serjeant Warren and Mr. Graydon, in support of the appeal. Mr. O'Brien and Mr. M'Mahon, contra. The topics relied on in the argument appear sufficiently from the judgment. In addition to the authorities observed on by the CHANÂÂCELLOR the following were also cited : Franks v. Mason (a) ; Ryan v. amble (b); Wright v. Maddock (c) ; 2 Saund. 6, et seq. ; notes to Jeffreson v. Morton ; Enid. p. 9, &c.; Fenny d. Masters v. Durrant (d); Den d. Taylor v. Lord Abingdon (e). The LORD CHANCELLOR. This case comes before me on appeal from the decision of the Master of the Rolls. His Honor overruled the exceptions to the Master's report. I concur in that decision, and think that those two judgments cannot, on the facts appearing before me, be looked on as not being still incumbrances on the estates. The facts of the case, as was observed by the Master of the Rolls, are very peculiar. The judgments are so old as the year 1738, and the lands now sought to be affected by them were sold so long ago as the year 1786, more than sixty years since, to a Mr. Lyons Lloyd. There has been no recognition of these judgments since by any matter either in pais or of record by either the purÂÂchaser or the debtor. These lands are now to be sold in this cause, and it is said that the Court must hold these judgments to be incumÂÂbrances upon them, or at least that it is so doubtful whether they bind the lands or not that a purchaser of them will not be held to his purchase. Without going through all the devolution of the interest, it appears that in 1841 a scire facias was brought against persons (a) 9 Ir. Eq. Rep. 358. (6) 2 Ir. Eq. Rep. 328. (c) 10 Jur. 366. (d) 1 B. & Ald. 40. (e) 2 Doug. 473. CASES IN EQUITY. 587 holding some other lands which had been the estate of the conusor of the judgments and had remained his after 1786, and which had come from him to these persons ; and it is argued that the operation of the proceeding on this writ has been to keep the judgments alive. That action of scire facias proceeded to judgment, and the revivor of the judgment, which plainly makes them binding on Reynolds, M'Namara and the other parties who were then before the Court in the scire facias, it is said, being within twenty years, keeps those judgments alive also as against every person whatever. This objecÂÂtion the Master* has decided in favour of the purchaser, and I am informed by him that he did so considering the case I shall presently refer to as governing this. The objection rests, I may say, altogether on the case of Martin v. M'Causland (a) in the Common Pleas here, reported in the 3rd vol. of the Ir. Law Rep., and White v. White (b), which is reported in the note to that case. It was there decided that the revivor of a judgment against the personal representative of the conusor was sufficient to defeat a plea of the Statute of Limitations pleaded by terre-tenants of the same conusor, though they were not parties to the scire facias, but were altogether strangers to it. It is not necessary for me to go through the cases bearing on this subject; for nothing could be more complete than the discussion they underÂÂwent in the judgment of the Master of the Rolls. His Honor came to the conclusion that Martin v. M'Causland is not law and ought not to bind this Court. In that opinion I concur. Martin v. M'Causland was decided in the year 1840. That was soon after the decision of Farran v. Ottiwell (c) in the Court of Exchequer Chamber, and before that case went to the House of Lords, where it was finally disposed of (d). It is no doubt an express decision that a revivor against a personal representative is enough to keep a judgment alive against terre-tenants of the conusor ; but Farran v. Ottiwell, on the doctrine of which it depended, afterwards came (a) 3 Ir. Law Rep. 113. (b) Ibid, 118, note. (c) 2 Ir. Law Rep 110. (d) See 10 Cl. & Fin. 319. * MASTER BROOKE. 588 CASES IN EQUITY. before the House of Lords; and it was there held that the decision in the Exchequer Chamber here was erroneous and that a revivor by scire facias confers a new right, and though it may prevent the bar of the Statute of Limitations, yet the plaintiff who wishes to rely on it must make it a part of his pleading. That ease was followed by Farrell v. Gleeson (a), in which the House of Lords decided that a scire facias creates a new right sufficient to keep a judgment alive and unbarred by the statute. But against whom ? -against those who were parties or privies to the revivor. The bill there was filed against the real and personal representative of the conusor. The judgment had been revived against Sarah Keane and the terre-tenants, and Sarah Keane was sole devisee and personal representative of the conusor. Therefore in that case there was a complete revivor ; and the House of Lords decided that it created a new right, and thus prevented the operation of the Statute of LimiÂÂtations in favour of the parties there. But there remains the question, against whom ? In Martin v. MCausland the Court went to the length I have mentioned ; but the decision of the House of Lords that the revivor gives a new right must limit the operation of the revivor to the persons against whom that new right arises. In O'Brien v. Ram (b), and the other cases cited in the arguÂÂment of Farrell v. Gleeson, it is clearly laid down that an action of debt will lie on a judgment in scire facias. Could that be brought against those who were not...