Lalor v Lalor

• Jurisdiction: Ireland
• Judgment Date: 04 July 1879
• Date: 04 July 1879
• Court: Chancery Division (Ireland)

Q. B. Div.

Before O'BRIEN and FITZGERALD, JJ.

LALOR

and

LALOR

Bartlett v. PickersgillENR 1 Eden, 516.

Sweetland v. Webber 1 A. & E. 740.

Bartlett v. PickersgillENR 1 Eden, 515.

Heard v. Pilley 4 L. R. Ch. App. 548.

Nicholson v. Mulligan I. R. 3 Eq. 308.

Higham v. RidgwayUNK 2 Sm. L. C. 192.

Milne v. LeislerENR 7 H. & N. 786.

In Aveling v. Knipe 19 Ves. 441.

Evidence Trust Parol evidence Statute of Frauds Subsequent declarations by grantor in derogation of grant.

350 LAW REPORTS (IRELAND). [L. R. L Q. B. Div. been called on to show cause does not affect the question of jurisÂÂ1879. diction ; on the contrary, it admits the magistrate's jurisdiction, and In re rests upon this-that in the exercise of it there had been irregu REA . larity. I am clearly of opinion that that is not a matter we, ought to investigate on a motion of this kind. Solicitors for Mr. Lloyd : Roche 4 Son. TnOR v. LALOR (1). Evidence-Trust-Parol evidence-Statute of Frauds-Subsequent declara tions by grantor in derogation of grant. A. purchased leaseholds, which were conveyed to him by a deed ptirporting on its face to be an absolute assignment, unaccompanied by any written declaÂÂration of trust, and afterwards assigned the premises. In an action by the assignees to recover possession, defence was taken by B. Parol evidence was offered by B. (a) of statements made by A. at the time of the purchase, that he had purchased the premises in trust for B., upon the terms of B. repaying him the amount of the purchase-money ; (b) of admisÂÂsions by A. subsequently to the assignment under which the Plaintiffs claimed, that the purchase-money had been repaid by B. Held, that such evidence was inadmissible. ACTION to recover possession of certain premises situate at Howth, county of Dublin. The case was tried before Mr. Baron Fitzgerald at the Michaelmas Sittings, 1878. The facts, as appeared. from the report of the learned Judge, were as follows :-The Plain. tiff's title was under a lease for years made in October, 1847, by the late Earl of Howth to Nicholas Sweetman, who, on the 21st of Jan., 1852, assigned them by deed of that date to Patrick Delany, deÂÂceased, in consideration of 262 10s. This assignment was made to Patrick Delany without any written declaration of trust in favour of any person, and the purchase-money was paid by him out of his own funds. By indenture of the 26th of August, 1859, Patrick Delany assigned the premises to John Delany and Patrick (1) Before O'BRT-cw and FITZGERALD, J.J. VOL. IV.] Q. B., C. P., & EX. DIVISIONS. were, in July 1878, appointed by the Court of Chancery new trusÂÂtees of that deed. The Defendant in his statement of defence denied the right of the Plaintiffs to the premises, and also made a counter-claim in which he alleged that, admitting that the legal estate in the premises comÂÂprised in said indenture of the 26th of August, 1859, had been vested in the said Patrick Delany, the said Patrick Delany held the same as a trustee for the Defendant, having previously purchased the same for the Defendant solely, and not otherwise, at the Defendant's reÂÂquest, the purchase-money whereof was repaid by said Defendant to said Patrick Delany by instalments ; that the Defendant never authorised or adopted the said indenture of the 26th of August, 1859, or any part of the trusts declared therein, and the said trusts were declared without his assent or knowledge; and that the said indenture was made fraudulently and collusively. The Defendant claimed, first, that the said deed might be set aside as fraudulent and void, and that the Defendants in the counter-claim (the PlainÂÂtiffs in the original action) be declared to hold the said premises in trust for him. The Defendant at the trial proved by his own testimony that Patrick Delany stated to him, at the time of the sale of Sweetman's interest, that the purchase was to be for the DefenÂÂdant, and that he (Delany) was to be repaid the purchase-money by instalments. As to the repayment of the purchase-money by instalments or otherwise, parol evidence only was offered of admisÂÂsions by Patrick Delany that he had been repaid the money, all such alleged admissions having been made after the execution of the assignment of the 26th of August, 1859. The learned Judge rejected this evidence, and directed a verdict for the Plaintiffs. A conditional order for a new trial having been obtained on the grounds of the rejection of evidence and misdirection J. A. Byrne, Q. C. (with him W. Smith), for the Plaintiff, showed cause, and relied on Bartlett v. Piekersgill (1) ; Doe d. Sweetland v. Webber (2). (1) 1 Eden, 516. (2) 1 A. & E. 740. 352 LAW REPORTS (IRELAND). [L. R. I. Q. B. Div. S. Walker, Q. C., and Cleary, for the Defendant, in support of 1879. the conditional order :- As regards the Statute of Frauds, the trust arose by operation of law, and followed the purchase-money, which at the time of payment was the money of the borrower Lalor : Bartlett v. Pickers-gill (1) was commented on in Heard v. Pulley (2) ; Nicholson v. Mulligan (3). Delany's statement as to repayment, being against pecuniary interest, was after his death admissible even against third persons : Higham v. Ridgway (4) ; Milne v. Leisler (5). Where there is a loan in connexion with a purchase, the borrower, not the lender, is the beneficial owner, no matter in whose name the conveyÂÂance may be taken, and unless the...