Marnell, and another, -Appellants; Blake, and another, -Respondents

• Jurisdiction: Ireland
• Judgment Date: 01 April 1815
• Date: 01 April 1815
• Court: Court of Chancery (Ireland)

English Reports Citation: 3 E.R. 1153

APPEAL FROM THE COURT OF CHANCERY

Marnell, and another

-Appellants

Blake, and another

-Respondents

Mew's Dig. V. 422; vi. 719, 773, 801; x. 1435, 1591; xv. 665. Commented on in Muskerry v. Chinnery, 1835, LI. & Goo. 185, 227; Minchin v. Minchin, 1870-71, 5 I. R. Eq. 178, 189, on app. 258, 268; Pennefather v. Pennefather, 7 ib. 300, 318; L'Estrange v. L'Estrange, 1890, 25 L. R. Ir. 399, 407.

In this case a tenant for life, having a power to raise a sum of money, granted an annuity charged on the settled estates till a certain sum should be paid off, without, in the annuity deed, referring to the power. Held that this, under the particular circumstances of the case, was a good, though an informal, execution of the power.

The peculiar circumstances were chiefly, that the settlement gave no directions as to the mode of execution; and that it contained a prohibition against sale or mortgage so as to defeat the provisions of the settlement, might have had the effect of inducing the tenant for life to have recourse to the mode of annuity.

Lord Eldon (C.) (Lord Redesdale concurring) expressly guarding the judgment against being understood as a decision that in all cases, where tenant for life had such a power, a grant of an annuity without reference to the power, would be a good execution.

MARNELL V. BLAKE [1815-1816] IV DOW. tacked the judgments to the mortgage, he might have filed a bill for that purpose, and then Moore would have had a limited time appointed, within which he must pay, or, if not, he would be foreclosed. But, instead of that, Blake takes a different course, which cannot be sustained, that is, he resorts to a sale of right to a suit in equity ; and it would be of dangerous consequence if such a transaction could be sustained, for it would then be impossible for mortgagors, who had judgments against them, to sell the equity of redemption of the mortgaged property. Then the only question is as to the delay. The bill was filed the moment Blake executed this contrivance, and therefore there was no undue delay in filing the bill, as it was filed before Moore was turned out of possession under the ejectment, and before Blake got possession. There was delay in prosecuting the suit, but then Blake might have moved to dismiss the bill for want of prosecution. He suffered the matter to rest however until Moore proceeded with it and obtained a decree, from which it appears that the Lord Chancellor acted upon somewhat of a mistaken notion of the nature of the case. He decrees a lease of a moiety to be executed ; but it was not a moiety, but a distinct portion. When the cause came on for a rehearing Lord Manners dismissed the bill, and it was stated that the ground of that decision was the delay in [247] prose- cuting the suit. If there was no other ground, that ground did not apply. Whether that was the ground or not I do not know, but I have heard of no other, except the alleged practice in Ireland of selling interests of this nature under writs of fi fa., and even that is stated to have been the practice only in 1781, for I do not understand it to be said that it is the practice now. The judgment must be somewhat special, as allowance must be made to Blake for improvements, and the first decree has not provided for the application of the rents to the reduction of the fines and rent to the Archbishop, after which they must be applied to the reduction of the principal and interest of the mortgage money. This requires further consideration, 'but the contract must be held to be still binding. On the 26th of March, 1816, the formal judgment was delivered in by Lord Redesdale, reversing the decree of 1808, and affirming that of 1801 with alterations and additions as above ; Lord Redesdale stating (Lord Eldon (C.) concurring) that the costs were calculated, on the principle that the landlord might refuse to execute the lease till paid his debt, interest, and costs. Agent for Appellant, WATKINS. Agent for Respondents, WINDUS. [248] IRELAND. APPEAL FROM THE COURT OF CHANCERY. MARNELL, and Another,Appellants; BLAKE, and AnotherRespondents [May, 1815 ; April 1, 8, 1816]. [Mews' Dig. v. 422 ; vi. 719, 773, 801; x, 1435, 1591; xv. 665. Commented on in Mnskerry v. Chinnery, 1835, Li. & Goo. 185, 227 ; Minchin v. Mine/sin, 1870-71, 5 I. R. Eq. 178, 189, on app. 258, 268 ; Prone/ether v. Prone/other, 7 Lb. 300, 318 ; L'Estranqe v. L'Estrange, 1890, 25 L. R. Ir. 399, 407.] [In this case a tenant for life, having a power to raise a sum of money, granted an annuity charged on the settled estates till a certain sum should be paid off, without, in the annuity deed, referring to the power. Held that this, under the particular circumstances of the case, was a good, though an informal, execution of the power.] [The peculiar circumstances were chiefly, that the settlement gave no directions as to the mode of execution ; and that it contained a prohibition against sale or mortgage, which, though it was understood as only a prohibition against sale or mortgage so as to defeat the provisions of the settlement, might have had the effect of inducing the. tenant for life to have recourse to the mode of annuity.] H.L. us. 1153 53 IV DOW. MARNELL V. BLAKE [18 1 5-1 8 1 6] [Lord Eldon 'C.) (Lord Redesdale concurring) expressly guarding the judgment against being understood as a decision that in all cases, where tenant for life had such a power, a grant of an annuity without reference to the power, would be a good execution.] By indenture bearing date the 18th of September 1779, and made between ,Edmond Marnall, then of Cregan, in the county of Galway, Esquire, and Elinor Marnell his wife, and James Marnell his eldest son and heir, (all since deceased,) of .the first part, James Henry Burke, Edmond O'Flynn, Thomas Kelly, and Ulick Burke, Esquires, of the second part ; and Honora Morgan, (since de-[249]-ceased,) then the widow and executrix of Jeffery Morgan, deceased, of the third part ; after reciting (amongst other things) that a marriage was intended to be had between the said James Marnell, and Honora Morgan, and that the said Edmond Marnell then stood seized in fee simple, of the following lands, tenements, and hereditaments, that is to say, Moher, Grallaghduff and Kiltogher, containing 163 acres, Stafford survey, more or less, (which denominations with their appurtenances were reputed, known, and taken as part and parcel of the demesne lands of Cregan Corlack, otherwise Knock-vigue, containing fifty-three acres, like survey, more or less,) Kilcroan Temple, otherwise Ballyglass, containing seventy-three acres, like survey, Gilkagh, containing sixty-four acres of land, Irish plantation measure, more or less, the lands of Carrawin and Carraclogher, otherwise Kilcooley, containing 144 acres, Stafford survey ; the said Edmond Marnell, for the consideration therein-mentioned, covenanted and agreed with the said James Henry Burke, and Edmond O'Flynn, that they should stand seized of an estate of inheritance, in fee simple, in possession, of and in all the said recited lands and hereditaments, under and subject to the provisoes and agreements therein declared, of and concerning the same, (.that is to say,) to the use of the said James Marnell, during the term of his natural life, without impeachment of waste, and from and after his decease, to the use, intent and purpose, that the said Honora his intended wife, should yearly during the term of her natural life, out of the said lands and tenements, have and receive one clear third part of [250] said lands, or any other estate or lands that her said intended husband should either purchase or acquire in any manner...