Massey v Batwell

• Jurisdiction: Ireland
• Judgment Date: 27 April 1843
• Date: 27 April 1843
• Court: Court of Chancery (Ireland)

(Chancery.)

Massey

and

Batwell.

Chancery.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

A tenant in tail, upon the marriage of his eldest son, conveyed the entailed lands as if he were seized in fee, to trustees, for a term of years to secure a jointure for his own wife, and a jointure for the intended wife of his son, in case certain other property upon which the latter was previously charged should be sold: and subject thereto to the use of himself for life, remainder to other trustees for another term of years, to raise portions for his younger children and subject thereto, to the use of the son for life, remainder, subject to a third term, to his first and other sons in tail. No fine or recovery was ever levied or suffered by the father or by the son. A bill was filed to raise the portions, and a decree was pronounced directing a sate of the term. After the decree, the eldest son of the marriage, his father and grandfather being both dead, executed a disentailing deed, and conveyed the lands in fee to a person not a party to the suit, expressly subject to the term. That person afterwards conveyed the fee to the widow of the father, who was a party to the suit, and had allowed the decree to be made upon sequestration against her.

Held, upon an appeal from an order of the Master of the Rolls overruling the purchaser's objections to the title, that the acts of the eldest son operated as a confirmation of the settlement, and that a good title to the term could be made.

Held also, that the widow having acquired her title after the decree, would be bound to give effect to that decree out of it.

Held also, that judgments entered pending suit, against the eldest son of the marriage and his vendee, were not an objection to the title.

By indenture, dated the 10th of February 1809, made between Lullum Batwell and Elizabeth his wife of the first part, Andrew Batwell the eldest son and heir apparent of Lullum, of the second part, William Galway and Helen Catherine Galway, his daughter, of the third part, the Rev. William Stopford and Robert Delacour of the fourth part, James Cotter and John Boles Reeves of the fifth part, Arthur Gibbings and Rogerson Cotter of the sixth part, Sir James Cotter and the Rev. Freeman Crofts of the seventh part, reciting an intended marriage between Andrew Batwell and Helen Catherine Galway, and reciting that Lullum Batwell, the father of Andrew, was seized in fee of the lands of Fortlands in the county of Cork, Lullum Batwell conveyed those lands to the use of James Cotter and John Boles Reeves for 100 years, to secure a jointure of £150 for his wife Elizabeth, and also to secure a jointure of similar amount to Helen Catherine Galway in case she should survive her intended husband, and in case certain property in England upon which the latter jointure was in the first instance charged, should be sold under the provisions for that purpose contained in the deed. Subject to that term the lands were limited to the use of Lullum Batwell for life, remainder to Stopford and Delacour during his life as trustees to preserve contingent remainders, remainder after the death of Lullum Batwell to Gibbings and R. Cotter for a term of 200 years from his death, remainder to Andrew Batwell for his life, with a similar limitation to Stopford and Delacour to preserve contingent remainders during his life, remainder to Sir James Cotter and Crofts for a term of 300 years, remainder to the first and other sons of Andrew Batwell in tail male, with remainders over, which it is unnecessary to state.

The trusts of the term of 200 years were declared to be for raising portions for Thomas and Jane Batwell, the younger children of Lullum the settlor.

The settlement contained a covenant for further assurance by Lullum Batwell.

At the time of the execution of that settlement Lullum was not seized in fee of the lands of Fortlands, but was seized of those lands in tail, and no fine was levied, recovery suffered, or disentailing deed executed either by him or his son Andrew.

On the 25th July 1823, a bill was filed by parties entitled to a share of the portion provided for Jane Batwell, against Lullum and Andrew Batwell and other parties interested under the settlement, for the purpose of raising the amount due to them, by a sale of the term of 200 years.

Lullum Batwell died in 1826, and in 1830 the plaintiffs filed an amended bill against Andrew Batwell, Helen Catherine his wife, Thomas Batwell their eldest son, and others; and on the 22nd of April 1837, they obtained a conditional decree on sequestration against Andrew and his wife, and their eldest son Thomas.

On the 7th of June 1838 that decree was made absolute, and the usual decree to account was pronounced. The Master made his report under that decree on the 24th...