M'Mahon and Others v M'Elroy

• Jurisdiction: Ireland
• Judgment Date: 09 June 1869
• Date: 09 June 1869
• Court: Chancery Division (Ireland)

V. C. Court.

M'MAHON AND OTHERS

and

M'ELROY.

Malony v. Kernan 2 Dr. & War. 31.

Jackson v. RoweENRENR 2 Sim. & Stu. 472; 4 Russ. 514.

Knight v. BowyerENR 23 Beav. 609, 641; affd. 2 De G & Jon. 421.

Doe v. DeakinENR 4 B. & Ald. 433.

Rust v. BakerENR 8 Sim. 443.

Hughes v. Garner 2 Y. & C. Exch. Rep. 328.

Hardy v. Reeves 5 Ves. 426. 426.

Smith v. KayENR 7 H. L. C. 750.

Watson v. EnglandENR 14 Sim. 28.

Dowley v. WinfieldENR 14 Sim. 277.

Bowden v. Henderson 2 Sm. & Gif. 360.

Gerrard v. O'Reilly 3 Dr. & War. 414.

Jones v. SmithENR 1 Hare, 43.

West v. ReidENR 2 Hare, 249.

Doe v. NepeanENR 5 B. & Ad. 86.

Nepean v. Doe 2 Mee. & W. 894.

Doe v. JessonENR 6 East, 80.

Doe v. DeakinENR 4 B. & Ald. 433.

In the Goods of Elis. How 1 Sw. & Tris. Prob. Cas. 53.

Scott v. The Mayor of Liverpool 1 De Gex. & Jon. 369.

Notice — Presumption of Death after Seven Years.

THE IRISH REPORTS. M`MA HON AND OTHERS V. M'ELROY. V. C. Court. 1869. Notice-Presumption of Death after Seven Years. June 8, 9. Where, upon a sale of land, the same solicitor acts for both vendor and vendee, the latter, a purchaser for value, is affected with notice, through the solicitor, of the invalidity of the vendor's title. A statement in a bill, " that the Defendant was aware, and had notice of, &c.," is sufficiently specific to let in evidence that the Defendant had notice through his solicitor. The Court of Chancery, following the analogy of the Statute (7 W. 3, c. 8, s. 1), acts upon the general rule, that a man's death is to be presumed after an interval of seven years since he was- last heard of ; but the rule admits of exceptions, and the Court is bound to consider the circumstances of the partiÂÂcular case, in order to see whether the presumption is rebutted, or, rather, whether it fairly arises. THIS cause came on for hearing upon issue joined. The bill, which was filed on the 21st of March, 1868, stated that by articles of agreement, dated the 17th of July, 1829, David Ross agreed to grant to Hugh Morgan a lease of certain premises in the village of Rostrevor, for three lives or sixty-one years, at the rent of 2s. 6d. per foot. No lease was executed to Hugh Morgan ; but he entered into possession and built several houses on the premises. By will, dated ,the 10th of June, 1852, Hugh Morgan beÂÂqueathed to his son, Hugh Morgan, the younger, one-third of the aggregate sum of the rents of all those houses, and to his three VoL. V. 2 V. C. Court. daughters, Mary, Ellen, and Anne, the remaining two-thirds to be 1869. equally divided amongst them ; and he directed that division to be lg 'MAHON continued until each of his daughters attained the age of twenty-one years, or married ; and that then her or their shares should be added to the share of his son until the whole of the property should return to the son ; and he expressed his will to be that, if his son died before his daughters, or any one of them, the whole of his said property should then be valued and divided equally among his three daughters. The testator died in July, 1852. His three daughters afterwards married ; and they, with their husbands, were the Plaintiffs in this suit. The interest of David Ross in the premises, and also the fee in them, became vested in David Robert Ross of Bladensburgh, who, on the 13th of August, 1860, in pursuance of the articles, executed to Hugh Morgan, the younger, a lease of the premises for three lives, and the survivor of them, and for the term of sixty-one years from the 1st of May, 1829, whichever' of said terms of lives or years, should longest continue, subject to the yearly rent of £7 3s. ld. Each of the three cestuique vies named in that lease was, at its date, thirty-two years of age, and all of them were alive at the filing of the bill. On the 27th of November, 1860, Hugh Morgan, the younger, by deed, in consideration of £158, assigned to the Defendant the premises demised by that lease. That assignment was executed without the knowledge or consent of any of the Plaintiffs, who subÂÂmitted that Hugh Morgan, the younger, took the lease of the 13th of August, 1860, in trust for the parties interested therein under the will of his father. Immediately after the execution of that assignment, Hugh Morgan, the younger, left Ireland for America, and the Plaintiffs alleged that he had never since been heard of ; that they believed that he was dead ; and that, upon his decease, they became entitled to the premises by virtue of the provisions of his father's will. They also charged that, at and before the execution of the assignÂÂment, " the Defendant was aware and had notice of the agreement of the 17th July, 1829, and of the other facts and matters hereinbefore stated." VoL. V.] EQUITY SERIES. The Plaintiffs prayed a declaration that the Defendant, since V. C. court. the death of Hugh Morgan, the younger, held the premises as a 1869. AHON __ trustee for them ; and that he might be decreed to execute a con- m m veyance thereof to them for the term granted. by the lease, and M'EutoY. account for the rents since the death of Hugh Morgan, the younger. John M'Adarra, one of the Plaintiffs, in his affidavit, stated that, some time before 1859, Hugh Morgan, the younger, went to America, and in 1859 returned to Ireland, and afterwards procured from the deponent a copy of the will of Hugh Morgan ; that, in July, 1860, Mr. James Murphy, solicitor of the Defendant in this suit, acted as solicitor for Hugh Morgan, the younger, at Quarter Sessions in an ejectment proceeding brought by him to recover a Wise which he claimed under the will; that a copy of the will of Hugh Morgan was on that occasion produced in open court by Mr. James Murphy, and was relied on by him as establishing the right of Hugh Morgan, the younger, to the possession of the preÂÂmises then sought to be recovered. Ellen M'Adarra, the wife of John M'Adarra, in her affidavit, made this statement :-" I say that my late brother, Hugh Morgan, left Ireland for America in the month of November, 1860, and has not since been heard of by me or any member of his family ; and that the reputation and belief of the said family and my own belief is that the said Hugh Morgan died long ago before the filing of the bill in this cause." This paragraph, with a like one...