M' Connell v Crothers

• Jurisdiction: Ireland
• Judgment Date: 15 January 1859
• Date: 15 January 1859
• Court: Rolls Court (Ireland)

Rolls.

M' CONNELL

and

CROTHERS.

Forrester v. Leigh Ambl. 173.

Long v. ShortENR 1 P. Wms. 403.

Bethune v. Kennedy 1 M. & Cr. 116.

Shuttleworth v. Graves 4 M. & Cr. 37.

Hayes v. HayesENR 1 Keen, 97.

Mead v. Lord OrreryENR 3 Atk. 238.

Cole v. MilesENR 10 Hare, 179.

Geary v. BeaumontENR 3 Mer. 431.

Phillipo v. Munnings 2 M. & Cr. 309.

Dix v. BinfordENR 19 Beav. 412.

Mills v. MillsENR 7 Sim. 501.

Benn v. DixonENR 10 Sim. 656.

Roberts v. Pocock 4 Ves. 150.

Fryer v. ButlerENR 8 Sim. 441.

M'Auley v. ClarendonUNKUNK 8 Ir. Ch. Rep. 121; S. C., on appeal, 8 Ir. Ch. Rep. 568.

Cole v. MuddleENR 10 Hare, 186.

Kinderley v. JervisENR 22 Beav. 1.

M'Auley v. ClarendonUNK 8 Ir. Ch. Rep. 121.

Since reported (8 Ir Ch. Rep. 568).

CHANCERY REPORTS. 217 establish that the title in this case is bad (a). It is not necessary that I should occupy public time by again going through the cases. It is sufficient to refer to my judgment in that case. There was no disinclination on the part of the respondents in the present case to take an assignment of the sub-lease, if they could safely do so, but they obtained the opinion of Mr. Serjeant Deasy that the title wag bad. All that I have to decide in this case, under the express terms of the consent of the 28th of June 1858, is, " Whether, the powers given to the Town-council, by the Baths and Wash-houses Act, 9 & 10 Vie., c. 87, to purchase baths and wash-houses, apply to the purchase of an interest such as that vested in the petitioners, in the subject-matter of this suit ? " I am of opinion that the Act did not authorise the Council tO contract for the purchase of the interest of the petitioners in the sub-lease of the 30th of September 1846, the title being bad. The petition must therefore be dismissed. (a) Lord St. Leonards on Ven. & Pun, 13th ed., pp. 317, 318 ; Fildes v. Hooker (3 Mad. 194, 195) ; Taylor v. Martindale (1 Young & Collier's Chan. Cas. 662, 663); Leatham v. Allen (1 Ir. Chan. Rep. 368); Darlington v. Hamilton (I Kay, 550). M'CONNELL v. CROTHERS. Tins was a motion by way of appeal from a decretal order, A ,testator, being possess-made by Master Litton in this matter, which was referred to ed of a term him under the 15th section of the Court of Chancery (Ireland) of years, with a toties quoties covenant for renewal, devised all his landed property, houses and tenements, goods and chattels of every description, ready money and outstanding debts, to his sons, A, B and C, to be equally divided between them, and appointed his wife executrix. The testaÂÂtor died in 1833 ; and, on his death, his widow, who proved the will, and B, went into possession of the lands, until the death of the wife in 1847, when A took out administration de bonis non, and continued in possession, applying all the rents to his own use. In 1850, a perpetuity grant of the lands, under the Church TempoÂÂralities Act, reciting the testator's will, and that A was administrator de bonis non was made to him expressly in that character. In an administration suit-Held, that the perpetuity grant rebutted the presumption of an assent by the executor to the bequests, arising from lapse of time. Secondly-That the lands should be sold, and divided into three shares, for the benefit of the sons of the testator, or their representatives. Thirdly-That the claim of A's representative, by reason of the surplus rents reÂÂceived by B, should be paid out of B's share, in priority to judgments against B, registered as mortgages. VOL. 9. 28 218 CHANCERY REPORTS. Regulation Act 1850. The facts of the case are fully stated by the MASTER OF THE ROLLS; but the following is a brief outline of them :-John Crothers the elder, being possessed of the lands of Ballycullen, held under the See of Armagh by a lease for years, with toties quoties covenant for renewal, and of certain premises in Blackwatertown, in the county of Armagh, and also of considerable personal estate, made his will on the 17th of February 1826, whereby, after bequeathing certain legacies to his daughters, he left and bequeathed to his four sons, William Crothers, then in Savanna, in North America, John Crothers the younger, Joseph Crothers and Alexander Crothers, all his landed property, houses and tenements, goods and chattels of every description, ready money and outstanding debts, to be equally divided between them, share and share alike ; and if any of his said sons should die before he or they should attain the age of twenty-one years, or before he or they should have lawful issue, he directed his or their share to go to and be equally divided between his surviving brothers; and he appointed his wife, Elizabeth Crothers, his executrix. Joseph Crothers, one of the sons, died in the testator's lifetime, under twenty-one, unmarÂÂried and without issue. The testator died in November 1833. Elizabeth Crothers proved the will ; and she and. John Crothers the younger possessed themselves of the assets, and received the rents of the lands. Elizabeth Crothers died in April 1847, intestate ; and John Crothers the younger obtained administration de bolds non with the will annexed to his father, and continued in receipt of the rents, which he converted to his own use. On the 4th of September 1850, a perpetuity grant of the lands of Ballycullen, under the Church Temporalities Act, was made by Sir William Verner, who was the immediate tenant under the Primate, to John Crothers the younger, as administrator of John Crothers the elder. William Crothers never returned to Ireland, and died in America on the 13th of July 1856. The petition was filed by the personal repreÂÂsentative of William Crothers, for an administration of the assets of John Crothers the elder and William Crothers. After the petition was referred to the Master, John Crothers the younger died intesÂÂtate, on the 12th of April 1857, and an order was made, appointing CHANCERY REPORTS. 219 the respondent Joseph Nicholas Kirwan to represent his estate. The creditors of John Crothers the younger and Alexander Crothers came in and proved their demands. Jacob Orr proved under two judgÂÂments, for 500 and 194. 6s. 7d., obtained against John Crothers the younger and Alexander Crothers, and registered as mortgages against the lands in Ballycullen and Blackwatertown, on the 4th of April 1855 and 16th of June 1855 ; James Reid, under a judgment registered as a mortgage on the 21st of June 1855, and John Walker Davidson, under a judgment registered as a mortgage on the 17th of May 1855. The Master's order directed the premises in Ballycullen and BlackÂÂwatertown to be sold, and that the...