Monckton v Braddell

• Jurisdiction: Ireland
• Judgment Date: 03 December 1872
• Date: 03 December 1872
• Court: Court of Appeal in Chancery (Ireland)

V. C. Court.

MONCKTON

and

BRADDELL.

Allen v. DundasENR 3 T. R. 125.

M'Dougal v. O'ShaughnessyUNK L. R. 2 C. L. 157.

Dickenson v. DickensonENR 3 Bro. C. C. 19.

Sheppard v. WilsonENR 4 Hare, 392.

Wynter v. Bold 1 S. & St. 507.

Saunders v. DehewENR 2 Vern. 271.

Allen v. KnightENRUNK 5 Hare, 272; affirmed on Appeal, 11 Jur. 527.

Carter v. CarterENR 3 K. & J. 618.

Sharples v. AdamsENR 32 Beav. 213.

Sowarsby v. LacyENR 4 Madd. 142.

Jones v. Powles 3 M. & K, 581.

Bowen v. EvansUNKENR 1 J. & Lat. 178L 6 Ir. Eq. R. 569; affird. in D. P. 2 H. L. C. 257.

Townsend v. Warren 1 J. & L. 221, n.; 6 Ir. Eq. R. 620.

Young v. YoungELR L. R. 3 Eq. 801.

Collyer v. FinchENR 5 H. L. C. 905.

Todd v. Studholme 3 K. & L. 324.

Patch v. WadELR L. R. 3 Ch. App. 203.

Hangate v. Gascoyne 2 C. P. Coop., temp. Cott. 405.

Bowen v. Evans 1 J. & L. 264.

Ogilvie v. JeaffresonENR 2 Giff. 35.

Kelsal v. BennettENR 1 Atk. 522.

Saunders v. DehewENR 2 Vern. 271.

Pilcher v. RawlinsELR L. R. 7 Ch. 259.

Administration to living person — Sale by Administrator — Purchase for value without notice — Legal Estate.

352 THE IRISH REPORTS. [I, E. V. C. Court. MONCKTON BRADDELL; 1872. Administration to living person-Sale by Administrator-Purchase for Value May 8, 9, 23. without notice-Legal Estate. A., who was entitled to a sum of money secured by a trust term in reverÂÂÂsion after a life estate, went to Australia, and remained there many years ; during which time B., representing him to be dead, obtained administration to his estate and effects, and a suit having been instituted in relation to the fund secured by the trust term, it was found by the report, and confirmed by the final decree, that he was dead. B. afterwards sold the charge to a purchaser for value, who took an assignment of the term from the trustee to a trustee for himself ; and A. having come back on the death of the tenant for life, and filed a bill to set aside the sale of the charge : Held, that, although the administration taken out by B. gave him no title to assign the charge, yet that the Court would not interfere to take away from a purchaser for value without notice the benefit of the legal estate which he had obtained by the assignment of the term. BILL filed in 1868 against the executrix of Mathew Henry Braddell and the executrix of John Waller Braddell, praying that a deed of the 13th May, 1851, should be declared to be void, in so far as it purported to dispose of the interest of the Plaintiff in a charge of £4000 ; and that the term of 500 years created by a deed of 18th June, 1812, should be declared to be still subsisting, and that the Defendants, or either of them, might be declared a trustee of the term, in trust for the Plaintiff, and bound to raise and pay to the Plaintiff the sum due to him. The Defendant, the exÂÂÂecutrix of John Walter Braddell, relied, as a defence, on his havÂÂÂing been a purchaser for value without notice. The facts are set out so minutely in the judgment that it is unnecessary to state them here. Mr. Jellett, Q. C., and Mr. Atkinson, for the Plaintiff. John Monckton did not get any right to the Plaintiff's portion of the charge by taking out administration to him, for letters of administration of the estate of a living man, are of no effect : Allen Von,. VI.] EQUITY SERIES. v. Dundas (1) ; Ihr'Dougal v. 0' Shaughnessy (2). The trustee had no power, either express or implied, to give a discharge to the purÂÂÂchaser of the charge. There was no express power to the trustee to give discharges contained in the settlement, and there was no implied power, as the charge was only to be raised for specified persons, at the age of twenty-one years, who could, and were the proper persons to give discharges : Dickenson v -Dickenson, (3) ; Sheppard v. Wilson (4) ; Wynter v. Bold (5). The defence of purÂÂÂchase for value without notice cannot avail the Defendants. J. W. Braddell knew, when he took the assignment of the term from the trustee, that the trusts of it were to raise sums for certain specified persons, and it is settled that a purchaser cannot protect himself by taking a conveyance of the legal estate from a trustee in whom it is vested on express trust : Sugd. V. & P. 740, 14th Ed. ; Saun ders v. Dehew (6) ; Allen v. Knight (7); Carter v. Carter (8) ; SharÂÂÂpies v. Adams (9). This was not like an assignment of a term the trusts of which had been exhausted at the time of the execution of the deed of 1851. The sale, although made after, was not under the decree of the Equity Exchequer. Mr. Jackson, Q. C., and Mr. W. H. Johnson, for the DefendÂÂÂants. The Defendant, the executrix of J. W. Braddell, is a purchaser for value without notice, and entitled to the protection of the legal estate which she has obtained. A power to trustees to raise porÂÂÂtions by sale or mortgage gives power to the trustees to give disÂÂÂcharges : Sowarsby v. Lacy (10). The notice that would be necessary to defeat the right of the purchaser for value, was notice that the Plaintiff was alive ; and J. W. Braddell had admittedly no such noÂÂÂtice. We do not contend that the letters of administration gave any title to John Monckton, but that J. W. Braddell, having purÂÂÂchased from him bona' fide and for value, is entitled to the protection (1) 3 T. R. 125. (2) I. R. 2 C. L. 157. (3) 3 Bro. C. C. 19. (4) 4 Hare, 392. (5) 1 S. & St. 507. (6) 2 Vern. 271. VOL. VI. (7) 5 Hare, 272 ; affirmed on ApÂÂÂpeal, 11 Jur. 527. (8) 3 K. & J. 618. (9) 32 Beay. 213. (10) 4 Mudd. 142. 2A V. C. Court. of the legal estate which he got. Jones v. Fowles (1) was a stronger 1872. case than this, for there the purchaser claimed under a forged will : MONCKTON Bowen v. Evans (2) ; Townsend v. Warren (3); Young v. Young (4); Collyer v. Finch (5), per Lord Cranworth. Although the sale was BRAIMELL. not, strictly speaking, under the decree, yet it was after, and in consequence of it : Todd v. Studholme (6). Then the suit is altoÂÂÂgether misconceived. The equity of the Plaintiff must be either fraud or mistake. No case of fraud is made by the bill, and it reÂÂÂquires very strong proof of fraud to set aside a decree regularly obtained : Patch v. Ward (7). If on the ground of mistake, the proceeding should be by bill of review, and the leave of the Court obtained to file it : 2 Daniel's Ch. Pr., 1423, 5th Ed. ; Hangate v. Gascoyne (8) ; Patch v. Ward (7), per Lord Cairns, L. J., p. 206. May 23. THE VICE-CHANCELLOR : The facts of this singular ease are not controverted, and may be stated as follows : -George Monckton, being seised in fee of cerÂÂÂtain lands, subject to the prior life estate therein of Constance Ann Jackson, by deed of 18th June, 1812, conveyed his estate therein to James Langford, for a term of 500 years in trust, to raise by sale or mortgage of the term a sum of £4000 for the children of George Monckton, in such shares, at such times, and with such inÂÂÂterest as he should by deed or will appoint, and, in default of apÂÂÂpointment, for said children, other than an eldest son becoming entitled to the estates, equally, payable to sons at twenty-one, and to daughters at twenty-one or marriage. George Monckton had four children, the Plaintiff, John, Mary Anne, and Margaret ; and he, by deed of the 10th November, 1821, appointed the £4000 to these four in equal shares, payable at the age of twenty-one, but not till the end of one year after his death. George Monckton died in the early part of the year 1841, leaving his said four children surviving. Miles, the Plaintiff, emigrated to Australia in the (1) 3 M. & K. 581. (2) 1 J. & Lat. 178 ; 6 Ir. Eq. R. 569 ; affird. in D. P. 2 H. L. C. 257. (3) 1 J. & L. 221, n. ; 6 Ir. Eq. R. 620. (4) L. R. 3 Eq. 801. (5) 5 H. L. C. 905. (6) 3 K. & J. 324. (7) L. R. 3 Ch. App. 203. (8) 2 C. P. Coop., temp. Cott. 405. Vol. VI.] EQUITY SERIES. 355 month of June following, and not in the year 1840, as stated in v. C. Court. the bill. He corresponded with his friends here till the year 1845, 1872. when, his communications with them ceasing, he was supposed to MONCKTON have died, and was not again heard of till on or soon before his re- R BRADDELL. turn to Ireland in the year 1868. Mary Anne Monckton, another of the children, died in or before the month of June, 1842, and letÂÂÂters of administration of her effects were in that month granted to her brother John. On the 30th May, 1844, a bill was filed in the Court, of Exchequer, at the Equity side, by John Monckton, in his own right and as administrator of Mary Anne, by the Plaintiff in this suit, and by Margaret Monckton, then the wife of a person named Scanlan, and her husband, against Langford, the trustee of the 500 years term, and others, including the tenant for life, ConÂÂÂstance Anne, then the wife of John Armstead Braddell, and her then husband, to raise the charge of £4000 by a sale of the term. Pending the cause, and before it came on to be heard, the Plaintiff here, Miles Monckton, was supposed or alleged to have died in Australia. His brother John, on an oath in the Court of Prerogative, dated the 10th January, 1846, obtained letters of administration to his effects forth of that Court on the 3rd February, 1846, and soon afterwards he and Scanlan and wife filed a bill of revivor in that cause, alleging the death of Miles Monckton, and the grant of administration of his estate to John, thus claiming the entire charge as vested in themselves, and the common order to revive was made thereupon. The cause came on for hearing on the 3rd November, 1847, when the usual decree for an account on foot of the charge of £4000 was made, and the bill was dismissed against the Defendants John Armstead Braddell and his wife. The RememÂÂÂbrancer made his report under the decree, dated 30th May, 1848, whereby he found that the full sum of £4000 with interest was...