London General Insurance Company Ltd, General Omnibus Company Ltd neral Workers' Union and Others
| Jurisdiction | Ireland |
| Judgment Date | 14 July 1936 |
| Date | 14 July 1936 |
| Docket Number | (1931. No. 5511) and (1933. No. 3681). |
| Court | High Court (Irish Free State) |
Statutes of Limitations - Acknowledgment - Part payment - Mortgage - Charge on lands and a trust in the lands in favour of mortgagee - Policy of insurance assigned as security for payment of debts - Payment of premiums thereon - Sum of Consols assigned as further security - Interest on Consols received by mortgagee - Sale of Consols - Payment of amount insured under the policy of insurance - Moneys received paid to mortgagee - Period of limitation - Trustee and cestui que trust - Mortgagor and mortgagee - Real Property Limitation Act, 1833 (3 & 4 Wm. 4, c. 27), sects. 14, 25and 34 - Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57),sects. 8 and 10 - Supreme Court of Judicature (Ir.) Act, 1877 (40 & 41Vict. c. 57), sect. 28. sub-sect. 2.
Application by the National Bank, Ltd., that the ruling of the Examiner herein should be reversed and the claim of the bank in respect of a certain mortgage, or series of mortgages, made in 1891 and 1892 should be allowed. The bank's claim was opposed by certain subsequent incumbrancers, including the plaintiff, on the ground that the bank's claim was barred by sect. 8 of the Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57).
Prior to the 16th of December, 1891, John Carr and Thomas O'Connor were carrying on a business in partnership in County Galway under the style of "O'Connor and Carr," and they were indebted to the National Bank, Ltd., in three separate sums—a joint debt of the partnership and a several debt owing by each partner. Thomas O'Connor died on the 5th of August, 1885, leaving all his estate to his widow, Eleanor O'Connor. John Carr died on the 16th of April, 1891, and his widow, Sabina Carr, took out a grant of probate of his will on the 24th of July, 1891. Under the will she was entitled beneficially to everything that he had.
After Carr's death the two widows carried on the business under the same title. Large sums being then owing to the National Bank, Ltd., it was decided that these debts should be consolidated and secured. This was done by a deed of arrangement in favour of the Bank, dated the 16th of December, 1891, and executed by Sabina Carr of the first part, Eleanor O'Connor of the second part and her son, John O'Connor, of the third part. At that date the following sums were owing to the Bank, viz.: £5,932 12s. 10d. by John Carr's estate, £1,036 17s. 8d. by Thomas O'Connor's estate, and £1,500 by Eleanor O'Connor and her son, John, jointly and severally, for bills discounted by the Bank for her, and a sum of £4,045 4s. 7d. due by Sabina Carr and Eleanor O'Connor as partners.
The deed of arrangement provided, inter alia, that:—
1. Sabina Carr was to charge certain lands, which she had inherited from her husband, with payment of the two sums of £5,932 12s. 10d. and £4,045 4s. 7d. Further she was to assign a policy of insurance on her life for the sum of £3,000 "to the intent that the said premises and policy shall be a security for the present as well as for the future liabilities of the parties hereto of the first, second and third parts to the said bank." This was to be done by two indentures, of which the charging deed was to be "of even date and intended to be read as supplemental to these presents" and the assignment was to be "of even date with these presents."
2. Eleanor O'Connor was to charge certain premises belonging to her with the payment of two sums, viz.: £1,036 17s. 8d. and £4,045 4s. 7d. This deed was also to be "read as supplemental to these presents."
3. John O'Connor was, by a deed which was also to be regarded as "supplemental to these presents," to assign to the bank a policy of insurance upon his life "to the intent that the same shall be a security to the said bank for the present as well as for the future liabilities of the parties hereto of the first, second and third parts."
The deed of arrangement continued with the following clause: "The said parties of the first, second and third parts hereby jointly and severally covenant with the said bank that they or one of them shall pay the premiums on the said two policies of insurance as the same shall become due so long as any moneys remain due and owing to the said bank on foot of the present and future liabilities of the said parties hereto of the first, second and third parts to the said bank and shall produce the receipts for the said premises to the manager of the said bank at Ballinasloe and shall also duly and punctually pay the rent and other outgoings payable in respect of the lands and premises mentioned in the schedule hereto."
This deed of arrangement was followed by the execution of the various deeds that were to be entered into as provided for therein.
First, Sabina Carr executed an assignment of her policy of insurance and covenanted to pay the premiums thereon; this deed was described as "supplemental" to the deed of arrangement. It was made "in pursuance of the said agreement (i.e., that contained in the deed of arrangement), and for the considerations in the said indenture . . . mentioned and in order to secure all the liabilities present or future of the said Sabina Carr to the said bank, either alone or jointly with others." Second, by a further deed on the same date, Sabina Carr charged the lands in question with the amount of her late husband's debt to the bank and with the amount of the partnership debt and constituted herself a trustee of the lands for the purpose of enabling the bank to sell the same and to make title to a purchaser. Third, on the same date John O'Connor assigned to the bank the policy of insurance upon his life for £2,000, as provided for in the deed of arrangement "to the intent that the same shall be a security to the said bank for the present as well as for the future liabilities of the parties thereto of the first second and third parts, or any of them, to the said bank." The deed witnessed that "in pursuance of the said agreement and for the considerations in the said indenture of even date herewith mentioned and in order to secure all the liabilities present and future to the said bank of the said parties to the said indenture of the first, second and third parts or any of them whether as representatives of their late husbands or individually, either alone or jointly with others and whether as principal or surety,"the assignment of the policy was made. John O'Connor further covenanted to keep the policy on foot by regular payments of the premiums.
All these three documents were described as "supplemental"to the deed of arrangement by which all the parties were jointly and severally bound.
On the 9th of July, 1892, Mrs. O'Connor and Mrs. Carr mortgaged to the National Bank, Ltd., a sum of £1,022 15s. 5d. Government New 23/4 per cent. stock which, subject to a life interest, they owned in equal moieties, being the proceeds of a policy of insurance upon the lives of their respective husbands jointly, as further security for the amount that they owed to the bank and as security for further advances.
No actual payment was ever made by Sabina Carr from the date of the deeds up to the time of action brought.
The £1,022 15s. 5d. Consols were subject to a life interest in another party which terminated in 1912. On the 12th of April, 1912, the bank for the first time received the interest on this sum and thenceforth until the 10th of April, 1924, the bank regularly drew the interest payable on the Consols. In April, 1924, these Consols were sold and the proceeds thereof were credited to Sabina Carr and Eleanor O'Connor. A portion of the payments of the said interest and the payment of the proceeds of the sale were made to the bank within twelve years next before this action was brought.
John O'Connor died in 1931 and the moneys in respect of his life policy of insurance were paid to the bank on the 22nd of June, 1931, and previously to that—also within twelve years of action brought—premiums due under his policy were paid by him to the Sun Life Office.
In 1931 Sabina Carr executed a deed, described to be supplemental to the deed of arrangement, charging all her interest in certain lands in County Dublin with the payment to the bank of the yearly premium of £79 (due on foot of her policy of insurance) and with any future sums which might be paid by the bank in respect of the policy.
The National Bank's claim was opposed by certain subsequent incumbrancers, including the Bank of Ireland, the Munster and Leinster Bank and the plaintiff on the ground that the National Bank's claim was long since barred by the operation of sect. 8 of the Real Property Limitation Act, 1874.
In pursuance of a certain deed of arrangement made in 1891 between S. C., E. O'C. and J. O'C. and the N. Bank, 1, S. C. charged certain lands in County Galway with payment of two sums, a partnership debt and a personal debt, due by her jointly and severally to the said bank and, further, assigned a policy of insurance upon her life as "security for the present as well as for the future liabilities of the parties" thereto to the said bank; 2, E. O'C. charged certain of her lands with the payment of the said partnership debt and a personal debt due by her jointly and severally to the said bank; 3, J. O'C. assigned a policy of insurance upon his life to the bank as security for the present and future liabilities of the three parties to the bank. All the foregoing indentures were described to be of even date with, and supplemental to, the deed of arrangement.
On the 9th of July, 1892, S. C. and E. O'C. mortgaged to the bank £1,022 15s. 5d. two and three-quarter per cent. New Consols owned by them, subject to a life interest, in equal moieties as further security for the sums due by them to the bank. The life...
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