Malone v Geraghty

• Jurisdiction: Ireland
• Judgment Date: 19 April 1843
• Date: 19 April 1843
• Court: Court of Chancery (Ireland)

Malone

and

Geraghty.

Chancery.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

A person entitled to an equitable interest in a lease which was under ejectment for non-payment of rent, obtained a loan of money for the purpose of redeeming it, and deposited the title deeds with the lender, and gave him an undertaking to execute a legal mortgage when required. The lender paid the sum required for redemption to the landlord, and got a receipt for it in his own name. The rent was subsequently allowed to fall into arrear; the landlord brought another ejectment for the non-payment of it, recovered judgment, and executed his habere. Immediately after the execution of the habere, he wrote to the person who had previously redeemed the lands, to know his wishes respecting the management of the property. When the six months from the execution of the habere were about to expire, the person who had previously redeemed tendered a sum sufficient to pay the rent and costs to the landlord, who declined to receive it, upon the ground that the person tendering it was not entitled to redeem; but he offered the person tendering the money that he would repay him the sum previously advanced, if he would not interfere. The tender was subsequently repeated, but he declined to accept it without the authority of the person beneficially interested. That authority was subsequently produced, and the person beneficially interested personally requested that the money tendered should be accepted. The landlord refused to accept it, unless the party tendering it would execute a trust deed, declaring himself a trustee of the surplus profits, after payment of his advances, for the person beneficially interested. This was declined, and a redemption bill was filed within six months by the person who had made the previous advance, and by the persons beneficially interested, making the landlord and the person having the legal estate in the lease defendants, but not bringing before the Court a trustee for the persons beneficially interested, who had no legal estate or equitable interest in the lands.

Held, that, an equitable mortgagee by deposit of deeds, or any other person having an equitable interest in an evicted lease is entitled to sustain a bill to redeem the lease, under the 11 Anne, c. 2.

That the Court has jurisdiction in a redemption suit to make the landlord pay the costs of the suit.

That in the present case, the landlord, having occasioned the suit, should pay the costs of it.

That at the hearing of a redemption suit, the Court may allow the cause to stand over for the purpose of adding formal parties.

The Ejectment Acts do not intertere with the general jurisdiction of the Court in redemption suits, farther than by restricting the period for filing the bill.

In the year 1811 Mary Lester, an infant, by Elizabeth Lester her guardian, executed a lease (by way of renewal) of certain lands near Harold's-cross in the county of Dublin, which she held under the See of Dublin, to Michael Frayne for the term of twenty years, at the rent of £56. 9s. 4d., and covenanted for the renewal of it toties quoties.

Michael Frayne, the lessee, by indenture bearing date the 8th of February 1823, made between himself of the first part, Thomas Fitzsimmons and Michael Frayne the younger of the second part, and John Frayne and Catherine Nolan of the third part, in consideration of a marriage then intended, and shortly afterwards solemnized, between John Frayne (his nephew) and Catherine Nolan, assigned the lands comprised in the lease of 1811 to Fitzsimmons and Michael Frayne the younger, upon trust to permit him to receive the rents and profits during his life, and after his death to permit John Frayne to receive thereout an annuity of £60. 2s. 6d. during his life; and after the decease of John Frayne, to permit Catherine, his intended wife, and the issue of the marriage, to receive the annuity of £60. 2s. 6d., equally, share and share alike.

By that deed, which was registered shortly after its date, Michael Frayne, the lessee, covenanted that he would procure a renewal of the lease within twelve months; and James Geraghty, in whom the interest of Mary Lester had vested by assignment, did by indenture, dated the 10th of December 1823, made between him of the one part, and Michael Frayne, the lessee, of the other part, in consideration of a renewal fine of £235, demise the premises comprised in the lease of 1811 to Michael Frayne, the lessee, for twenty years from the 25th of March 1823, at the yearly rent of £56. 9s. 4d. That lease contained the usual covenant by the lessee to pay the rent, and a covenant by Geraghty to renew toties quoties.

Michael Frayne, the lessee, continued in receipt of the rents until his death in 1830: from that time John Frayne, his nephew, received the annuity of £60. 2s. 6d. until 1834, when he died, leaving Catherine his widow, and three children by her, surviving.

Michael Frayne, the lessee, had made a will by which he appointed a person named Patrick Doyle his executor. Doyle renounced probate, and thereupon one of the daughters of the testator, named Elizabeth, who had been married to a person of the name of Gogarty, who had separated from her and left the country, obtained from the Prerogative Court letters of administration to the testator with his will annexed. The rents of the premises comprised in the lease of 1811 were not more than sufficient to pay the annuity settled upon the marriage of John Frayne, and Elizabeth Gogarty did not interfere with them.

In the year 1837, Catherine, the widow of John Frayne, married a person named Charles Duignan.

In the year 1838, there being a year's rent due to Geraghty, he brought an ejectment for non-payment of rent, obtained judgment and executed his habere. Upon that, Michael Frayne, the trustee of the settlement of 1811, who managed the property for the benefit of the widow and children of John Frayne, applied to John Robert Malone, the plaintiff, to advance the sum necessary to redeem the lands, which the latter agreed to do upon the terms of having the title deeds deposited with him as a security, and of getting an undertaking to execute to him a mortgage of the premises for the sum advanced. A statement of the title to the lands was sent to the Solicitor of Malone; the lease of 1811, the settlement of 1823, and the subsequent renewal, were deposited with Malone; and Michael Frayne, the trustee, and Charles Duignan, the second husband of Catherine, by a letter addressed to Malone, dated the 29th of June 1839, signed by them and witnessed by a person named Grattan, undertook to execute a legal mortgage to Malone, to secure the re-payment of the sum which he should advance for the redempton of the lands, with interest at £6 per cent. Shortly afterwards, Malone paid the sum of £85. 1s. 6d., for rent and costs, to Geraghty, who gave him a receipt in the following terms:—Lessee Geraghty v. Duignan and wife, “Received from Mr. Malone £85. 1s. 6d., in redemption of the premises ejected in the above cause, being the rent inclusive of March last, and costs.—James Geraghty.”

Immediately after the redemption of the premises, Michael Frayne, the trustee, entered into possession of the premises, and allowed the rent again to fall into arrear, and Geraghty having brought another ejectment for non-payment of rent, obtained a verdict ascertaining the rent due to be £51. 9s. 8d., got judgment, and executed his habere on the 22nd of May 1840.

Upon the 24th of May 1840, Geraghty wrote a letter to Malone in the words following:—

“Dear Sir—Having taken possession of Frayne's land on Friday last, it is absolutely necessary for me at once to determine what shall be the state of the land for the ensuing six months. The former tenant (Mr. Daniel) has applied to me to let him have it for the redemption period. Be so good as to let me know your intention—Yours, &c., James Geraghty.”

In October 1840, Malone, accompanied by his Solicitor (Christopher William Campion) called upon Geraghty, and told him he had come a second time to redeem the premises; upon which, Geraghty, according to the evidence of Campion, observed that it was not his wish that the premises should be redeemed, and added that if Malone would allow the time for redemption to expire, he, Geraghty, would pay him the sum which he had previously advanced, when the time for redemption had elapsed. Upon being asked to write a letter to that effect, Geraghty declined to do so, and the interview then terminated. In a few days afterwards, Campion, on behalf of Malone and of Catherine Duignan, tendered to Geraghty £120 in payment of the rent and costs, but Geraghty declined to accept it without the written authority of Catherine Duignan. Campion then obtained from Catherine Duignan a letter addressed to Geraghty, requesting him to accept of the rent and costs from Malone. The letter was signed by her, but the body of it was not in her handwriting. After having obtained this letter, Campion again called upon Geraghty, showed him the letter, and again tendered him the sum of £120, but the latter declined to receive it, saying that he did not wish to let in a mere adventurer upon his lands, and referred Campion to his Solicitor, Armstrong.

In a day or two afterwards, Malone and Campion called upon Armstrong, who stated that Geraghty would not receive the money tendered by Malone, unless the latter would execute a deed declaring that the lands were redeemed by him for the benefit of Catherine Duignan and her children, which Malone declined to do. Malone and Campion accompanied by Catherine Duignan, shortly afterwards called upon Geraghty, when the money was again produced, and Catherine Duignan requested Geraghty to accept of it, but he declined to do so, unless Malone would execute a deed declaring the same to be for the benefit of Catherine Duignan and her children, which Malone refused to do.

On the 21st of November 1840, Malone...