Lord Kilworth v The Earl of Mountcashell

• Jurisdiction: Ireland
• Judgment Date: 09 November 1864
• Date: 09 November 1864
• Court: Rolls Court (Ireland)

Lord Kilworth

and

The Earl of Mountcashell.

Rolls.

CHANCERY REPORTS,

BEING A SERIES OF

CASES ARGUED AND DETERMINED

IN THE

HIGH COURT OF CHANCERY,

COURT OF APPEAL IN CHANCERY,

Rolls Court, Landed Estates Court,

AND

COURT OF BANKRUPTCY AND INSOLVENCY.

(In the Rolls.)

The facts of this case, and the order pronounced on the hearing of a former appeal motion, are reported ante, vol. 12, p. 43.

The Master took the accounts directed by the order of the Master of the Rolls; and, by an order dated the 13th of May 1864, he declared the result of the accounts, which is stated in figures in his Honor's judgment, infra, pp. 569–570–71. It appeared that there was no arrear of interest or of annual payments due out of the family estates at the date of the deed of the 7th of October 1846; but a large arrear of interest accrued subsequently to that date, which ought, according to the agreement between the Earl of Mountcashell and Lord Kilworth, and in pursuance of the deed of the 7th of October 1846, to have been paid by Lord Mountcashell. A sum of £11,484.6s. 1d., interest on the charges on the family estates, was paid out of the produce of the sale of the Antrim estates, which thus became, by Lord Mountcashell's default, insufficient to pay all the charges on the family estates. To make up the deficiency, a portion of the family estates had been sold; and the Master's order declared that a sum of £7565. 11s. 1d. for principal, and £1720. 8s. 11d. for interest, making together the sum of £9286, had been paid out of the produce of the sales. The Master declared that the said sum of £9286 was well charged upon the life estate of the Earl of Mountcashell in the lands comprised in the deed of the 7th of October 1846, in priority to all charges, debts and incumbrances upon the said life estate created since the date of the said deed, with some consequential directions, which are stated in the judgment. The respondents, the trustees of the Commercial Bank of London, moved, by way of appeal, to reverse the Master's order, and that it might be declared that the judgment of Michaelmas Term 1848, for £8000, and a judgment obtained by William Friswell against the Earl of Mountcashell, had priority over the claim of Lord Kilworth and the other parties interested in the inheritance expectant on the life estate of the Earl under the deed of the 7th of October 1846.

Argument.

Sergeant Sullivan and Mr. Rogers, in support of the appeal motion, did not press for a reversal of the Master's order as regarded the sum of £1720. 8s. 11d., which consisted of interest which Lord Mountcashell was bound as tenant for life to keep down, and which the Court had decided, on the former appeal, should, have priority over the judgment creditors of Lord Mountcashell, but there was no decision on that appeal as to the principal, which stood entirely on a different footing. As tenant for life, Lord Mountcashell was not bound to pay the principal of incumbrances which affected the inheritance. The covenant of Lord Mountcashell to pay the principal of the charges out of the produce of the sale of the Antrim estates merely created a personal obligation on him. If it created a charge at all, it could only be a charge on the Antrim estates. It was not such a charge, as to the life estate of Lord Mountcashell, as could prevail over the specific lien of a judgment creditor. No doubt a judgment creditor's charge was subject to all the equities to which the judgment debtor was liable; but the equity must amount to an equitable estate, and not a personal obligation: Eyre v. M'Dowell (a); Egbert v. Butter (b); Irby v. Irby (c); Woodyat v. Greely (d); Scholefield v. Lockwood (e).

Mr. Brewster and Mr. J. P. Kennedy, for Lord Kilworth, contended that the question was the same as that on the former appeal, which the Court had no power to rehear, and which had been affirmed by the Court of Appeal.

Mr. Exham and Mr. Campion, for other parties.

Sergeant Sullivan and Mr. Rogers, in support of the appeal motion

Mr. Brewster and Mr. J. P. Kennedy, for Lord Kilworth

Mr. Exham and Mr. Campion, for other parties.

Judgment.

The Master of the Rolls.

A motion has been made in this case on behalf of the respondents Edward Oxenford and Jonathan Hopkinson, surviving trustees of the Commercial Bank of London, by way of appeal from the order of J. J. Murphy, Esq., the Master to whom this cause was referred by the Lord Chancellor, under the 15th section of the Court of Chancery (Ireland) Regulation Act 1850. The said order of the Master bears date the 6th of April, and was filed the 13th of May 1864; and it is sought by the notice of appeal that the order may be set aside and reversed, so far as it is declared thereby that the sum of £9286, therein mentioned, is well charged upon the life estate of the respondent the Earl of Mountcashell in all and singular the lands and premises comprised in the deed of the 7th day of October 1846, in the said order mentioned, in priority to all charges, debts and incumbrances upon the said life estate of the Earl of Mountcashell created since the date of the said deed; and that the said order may be also reversed and varied, so far as it declares that the petitioner Lord Kilworth is entitled to have the rents received or to be received by the receiver in the cause of Barnewall v. Mountcashell, and the produce of the Sales of the life estate of the said Earl, applied, so far as may be necessary, in satisfaction and discharge of the said charge (i. e., said sum of £9286); and the said notice of appeal seeks that it should be declared that the judgment obtained by Thomas Barnewall (since deceased) and the said appellants Edward Oxenford and Jonathan Hopkinson, trustees of the Commercial Bank of London, against the said Earl of Mountcashell, in the Court of Exchequer, in Michaelmas Term 1848, for the penal sum of £8000 debt, besides costs, and also the judgment previously obtained by William Friswell against said Earl, have priority over the claims of Lord Kilworth in this matter, and over the claims of the other persons interested in the inheritance expectant on the life estates of the said Earl of Mountcashell and Lord Kilworth in the said lands.

This case was before me on an appeal against a former order of Master Murphy. I stated the facts of the case in my judgment on that appeal, and also my opinion on the legal question in the cause; the case is reported in vol. 12 of Irish Chancery Reports, p. 43; and the decision was affirmed by the Court of Appeal, it is not therefore necessary to restate the facts. It was directed by my order, on the former appeal, that the accounts should be taken, and the inquiries made by the Master which are stated in said order.

The following is a short abstract of the accounts and inquiries directed by the said order, so far as it is material to state them for the purpose of the present appeal:—

Firstly; an account of the interest on the incumbrances and judgments in the first schedule to the deed of the 7th of October 1846, which affected what I described in my former judgment as the family estates, and also the arrear of annual payments payable out of the said estates, and in the said schedule mentioned, and which interest and annual payments were due at the date of the said deed.

Secondly; an account of the interest on said incumbrances and judgments, and the said annual payments which became due and payable after the date of the said deed of the 7th of October 1846. These accounts and inquiries related exclusively to what in my former judgment I described as the “family estates.”

Thirdly; an account of the interest on the incumbrances and judgments in the first schedule to the said deed, and also an account of the annual payments which affected what I have called in my former judgment “the devised estates,” and which were due at the date of the said deed.

Fourthly; a similar account as to the interest and annual payments which affected the said devised estates, and which became due and payable after the date of the said deed. Other accounts and inquiries were directed, as by reference to the order of this Court will appear.*

The Master has made the order now appealed from, and it is thereby declared:—First; that there was not at the time of the execution of the indenture of the 7th of October 1846, any interest due and payable on the incumbrances and judgments in the first

schedule to the said deed mentioned, and that there was not then due any arrears of any of the annual payments payable out of the estates mentioned in the deed of the 5th of October 1846 and 7th October 1846, or either of them.

There is no appeal against that declaration...