M'Auley v Clarendon

• Jurisdiction: Ireland
• Judgment Date: 28 May 1858
• Date: 28 May 1858
• Court: Rolls Court (Ireland)

Rolls.

M'AULEY

and

CLARENDON.

Earl of Bute v. Stuart 1 Br. P. C. Tom. 476.

Malin v. Keighly 2 Ves. 333, 529.

Abraham v. AlmanENR 1 Russ. 509.

Randall v. RussellENR 3 Mer. 190.

Knight v. KnightENR 3 Beav. 138.

Horwood v. WestENR 1 Sim. & St. 387.

Gully v. CregoeENR 24 Beav. 185.

Webb v. WoolsENR 2 Sim., N. S., 267.

Jones v. SmithENR 1 Hare, 43.

Whitbread v. Jordan 1 Y. & Col., Ex., 303.

Jones v. WilliamsENR 24 Beav. 47.

Massey v. Batwell 4 Dr. & War. 56.

Bellamy v. Sabine 26 Law Jour., N. S., 797.

Hamilton v. LysterUNK 7 Ir. Eq. Rep. 560.

Sumpter v. CooperENR 2 B. & Ad. 223.

Gaskin v. Durdin 2 Ball & Be. 169.

James v. Dean 11 Ves. 389.

Giddings v. GiddingsENR 3 Russ. 241.

Thorp v, OwenENR 2 Hare, 610.

Huskisson v. BridgeENR 4 De G. & Sm. 245.

Webb v. WoolsENR 2 Sim., N. S., 267.

Lechmere v. Lavie 2 M. & K. 197.

Abraham v. AlmanENR 1 Russ. 509.

Benson v. WhittamENR 5 Sim. 22.

Sale v. MooreENR 1 Sim. 534.

Knight v. KnightENR 3 Beav. 138.

Greene v. MarsdenENR 1 Drew. 646.

Lefroy v. FloodUNK 4 Ir. Ch. Rep. 1.

Gully v. CregoeENR 24 Beav. 185.

Drew v. Lord Norbury 3 J. & L. 267.

Corbet v. De CantillonUNK 5 Ir. Ch. Rep. 126.

Whitworth v. GaugainENR 1 Phil. 728.

Beavan v. Lord Oxford 6 De G., M'N. & G. 507.

Kinderley v. JervisENR 22 Beav. 1.

Rawe v. ChichesterENR Amb. 715.

Maunsel v. O'Brien Jo. 176.

Rabdall v. RussellENR 3 Mer. 190.

Acheson v. Fair 3 Dr. & War. 512.

Thorp v. OwenENR 2 Hare, 614, 615.

Wyatt v. Barwell 19 Ves. 435.

Whitworth v. GaugainENR 3 Hare, 416.

Kinderley v. JervisENR 22 Beav. 1.

Beavan v. Lord Oxford 6 De G., M'N & G. 522, 523.

Ford v. WastellENR 6 Hare, 229.

Jones v. BaileyENR 17 Beav. 582.

Footner v. SturgesENR 5 De G. & S. 736.

Rolleston v. Morton 1 Dr. & War. 195.

Ex Parte Boyle 3 De G., M'N. & G. 53.

Beavan v. Lord Oxford 6 De G., M'N. & G. 521, 522.

Kinderley v. JervisENR 22 Beav. 25, 26.

Beavan v. Lord Oxford 6 De G., M'N. & G. 517.

Corbett v. De CantillonUNK 5 Ir. Ch. Rep. 126.

Warburton v. LovelandENR 6 Bligh, P. C., 32.

Maunsell v. O'Brien 1 Jones, 176.

Giddings v. GiddingsENR 3 Russ. 241.

Giddings v. GiddingsENR 3 Russ. 258.

CHANCERY REPORTS. 121 185s. M'AULEY v. CLARENDON. May 1, 6, 28. THOMAS MATHEWS, being seised of a freehold interest in certain In 1851, B ob. tained a judg houses in Smithfield and Carter's-lane, and being tenant from year ment against A. In 1855, to year of other premises in Factory-lane, in the city of Dublin, a decree on eonsent was made his will, bearing date the 8th of April 1847, as follows :- made in an administration " First, I order and direct that all my just debts and funeral ex- suit, declaring A a trustee penses be paid as soon as convenient after my decease. I give, for himself devise and bequeath all my property, of what nature or kind soever - and his bro thers and sis or wheresoever, unto my dearly beloved wife Julia Mathews, in tens, as to cer tain lands in trust, for the support, maintenance and education of my children ; which he had the legal and, lastly, I appoint my said dear wife Julia Mathews, Thomas estate. In 1856, the Clarendon and John Mooney, Esqrs., executors of this my last will judgment cre- titer, regis- and testament." tered his jut ment as a On the 9th of April 1847, Thomas Mathews made the following mortgage, un- der the 13 and codicil to his will :-" I, Thomas Mathews, being of sound mind, 14 Vic., c. 29, memory and understanding, and being desirous of adding a codicil against the said lands.- to my will-having, by said will, bequeathed to my said dear Reid, that the registration of wife all my property in trust for my children-now I hereby give, the judgment affected that devise and bequeath to my said dear wife all my property, of what portion of the lands only in nature or kind soever, absolutely and for ever ; but she is to main- which A was beneficially taro, clothe and educate my said several children, and to endeavour entitled. The ris- to provide for them in the best manner she can ; and I declare this tration ofeg a as a codicil to my last will and testament, and desire it may be judgment as a mortgage, un- taken as part thereof." der the 13 and 14 Vic., c. 29, operates in Equity to pass the beneficial interest of the debtor only. If the debtor has a legal estate, it is transferred to the creditor, subject to the same equities as it was liable to before the registration. Qucere, whether the affidavit made by a creditor, for the purpose of registering a judgment under the 13 & 14 Vic., c. 29, should state the title, trade or profession of the parties at the date of the affidavit ? (a) An administrator cum test. an., being in possession of premises which the testator held as tenant from year to year under C, took a lease from D, the head landlord, to commence from the expiration of C's lease.-Held, that the lease was a graft on the testator's interest, and formed part of his assets. (a) See 21 & 22 Vic., c. 105, amending the 13 & 14 Vic., c. 29. VOL. 8. 16. • 4#-et .4-0,ip-ae7.404-,,i 61. 122 CHANCERY REPORTS. The testator died on the 9th of April 1847, leaving his widow and five children. The executors named in the will did not prove. Administration, with the will and codicil annexed, was granted to Stephen Thomas Mathews, the eldest son, who went into possession of the testator's property. Thomas Mathews held the premises in Factory-lane, under WilÂÂliam Murphy, as tenant from year to year. William Murphy's lease expired in 1856. On the 28th of June 1851, Stephen Thomas Murphy, who took possession as administrator, obtained a reverÂÂsionary lease of the premises from Lucas Waring, the head landlord, to commence from the 1st of November 1856. Julia Mathews died on the 5th of December 1847. On the 5th of June 1855, a cause petition was filed by the younger children of the testator against Stephen Thomas Mathews, his eldest son and administrator, to carry the trusts of the will into execution, and for an administration of the testator's estate, and of the estate of Julia Mathews. On the 15th of December 1855, a decree was made on consent, declaring the children of Thomas Mathews and Julia Mathews entitled to all the real and personal property of Thomas Mathews remaining undisposed of at the time of the filing of the petition, to be equally divided between them in equal shares, the petitioners waiving their right to an account of such of the assets as had been disposed of prior to the filing of the said petition. The premises in Smithfield, Factory-lane and Carter's-lane were sold in that suit on the 28th of January 1857, and the produce of the sale was brought into Court. On the 5th of June 1851, Thomas Clarendon obtained a judgment against Stephen Thomas Mathews, for 444. 9s. 8d. On the 19th of December 1856, Thomas ClaÂÂrendon registered an affidavit, under the 13 & 14 Vic., c. 29, s. 6. The affidavit stated that the " deponent, by the name and description of Thomas Clarendon, of Margaret-place, in the county of Dublin, gentleman, did, on the 5th day Of June, in the year of our Lord 1851, and in or as of Trinity Term, in the said year of our Lord 1851, obtain a judgment in her Majesty's Court of Queen's Bench in Ireland, against the defendant in this cause, by the name CHANCERY REPORTS. 123 and description of Stephen Thomas Mathews, of Smithfield, in the 1858. Rolls. city of Dublin, salesmaster." But the affidavit did not state the R ls. trade or profession or residence of the defendant at the date of it. ReAULE r v. On the 28th of May 1857, Thomas Clarendon obtained a charging CLARENDON order on the interest of Stephen Thomas Mathews in the funds Statement. lodged in Court ; and having been called on to execute a conveyÂÂance to the purchaser, he declined to do so, and, in consequence of his refusal, the petition in this matter, which was a supplemental petition, was filed. It prayed that it might be declared that the inÂÂterest acquired under the said lease of the 8th of June 1851, from Lucas Waring to Stephen Thomas Mathews, was a graft upon the oriÂÂginal estate or interest of Thomas Mathews, deceased, in the premises thereby demised, and formed part of the assets of the said Thomas Mathews, and that Stephen Thomas Mathews was a trustee of the said Factory-lane premises for the persons entitled under the will and codicil of Thomas Mathews ; and that it might be declared that the affidavit of registration might be set aside, or that such regisÂÂtration did not operate to vest in Thomas Clarendon the legal estate in the Smithfield, Factory-lane and Carter's-lane premises, or that Thomas Clarendon might be ordered to join in and execute the conÂÂveyance to the purchaser. The defences set up by the answering affidavit were First ; that the property against which the judgment was regisÂÂtered (save the Factory-lane premises) was the property of Thomas Mathews, and that same passed under his will and codicil to his widow Julia Mathews, and upon her death, intestate, so far as they were freehold, descended to Stephen Thomas Mathews as her heirÂÂat-law. Secondly ; that he was not a party to, or in any way bound by, the decree which was obtained on consent, and which could not defeat his rights to attach such estate or interest as Stephen Thomas Mathews took in the said premises. That he had no notice of the nature or contents of the decree at the time of registering the affidavit, and that he was a purchaser for value, without notice, to the extent of his registered mortgage. Thirdly ; that the lease of the Factory-lane premises having 124 CHANCERY REPORTS. 1058. been made by a person under whom Stephen Thomas Mathews did Rolls. not directly hold the said premises, and with whom he bad no ItgAIILEY privity or relation, could not be declared a graft on the original in V. CLARENDON terest of the testator, and that Thomas Clarendon was entitled, as a purchaser without notice of the legal interest of Thomas Mathews Statement. therein. Argument. Mr...