M'Ilroy v Edgar

• Jurisdiction: Ireland
• Judgment Date: 09 November 1881
• Date: 09 November 1881
• Court: Chancery Division (Ireland)

Ld. Chan.

M'ILROY

and

EDGAR.

Eyre v. M'DowellENR9 H. L. C. 619.

Scott v. Scott9 Ir. Ch. R. 319.

Caldwell v. FellowesELR L. R. 9 Eq. 410.

Judgment mortgage — Affidavit of ownership — Misdescription of townland and parish — Severance of joint tenancy — 13 & 14 Vict. c. 29.

'OL. VII.] CHANCERY DIVISION. 521 The deed of 1872 appears to have been prepared on this view ; V. 'C. for if the transaction there recited really took place, the interest 1881. due having been actually paid to the wife, she was at liberty, to DEVITT v deal with it as she pleased ; and if the transaction was only colour- FAIISSETT. able, it was stated as real in order to escape from the restraint on anticipation affecting the fund while unpaid. There is another -view of these transactions which would lead to a similar result, namely, that the mortgage of 1872 should be dealt with as a new and separate transaction ; that is, als a subÂsisting security for the sum stated to have been then lent, and the trust thereby declared. confined according to its terms to a separate use not restrained. from anticipation, leaving Mrs. Faussett to her remedy, if any, upon the deed of 1871. The former view is, I consider, the more correct one; and upon it I hold that, in the events which have happened, the Plaintiff is not debarred by the restraint on anticipation from his right to be satisfied out of the moneys mentioned in the statement of claim the amount due on Mrs. Faussett's promissory notes. I base this conclusion on the nature and effect of the deeds of 1871 and 1872, and I abstain from considering the important geÂneral question raised as to the effect of a clause against anticiÂpation in reference to a capital fund not producing income. Solicitors for the Plaintiff : Messrs. Larkin Co. Solicitor for the Defendant : Mr...