Nixon v Hamilton

• Jurisdiction: Ireland
• Judgment Date: 21 November 1838
• Date: 21 November 1838
• Court: Court of Chancery (Ireland)

Nixon

and

Hamilton.

CASES

IN THE

COURTS OF CHANCERY, ROLLS, AND

EQUITY EXCHEQUER.

CHANCERY.

PRIORITY OF DEEDS — REGISTRY ACT — NOTICE TO AGENT — HUSBAND & WIFE — SEPARATION DEED.

The original bill was filed 31st May, 1827, by John Bachelor, against Frederick Hamilton, Charles Fitzgerald, and Thomas Osborne, to raise a mortgage, dated 3d June, 1825, executed by Hamilton to Bachelor, and to pay off a prior incumbrance, to which Fitzgerald was entitled.

The bill was amended 1st March, 1828, and thereby William Bernard, H. S. Browning, and Mary Hamilton (wife to the above Frederick Hamilton), were made parties.

Bachelor died, and on 7th April, 1829, his executors, Rev. Alexander Nixon and Alexander Boyle, revived the suit, and added parties.

On the 16th of August, 1832, the plaintiffs, Nixon and Boyle, amended their bill, adding parties, praying the same relief as by the original bill, and praying an account of incumbrances prior to tire mortgage of 3d June, 1825, and a sale.

On 30th June, 1836, there was a decree to account, and thereby a question was reserved, as to the priority of the plaintiff's mortgage, dated 3d June, 1835, over a certain deed of separate maintenance, dated 26th September, 1821, under which Mrs. Hamilton, wife of the said Frederick Hamilton, claimed an annuity of £600 a-year.

The Master made his report, dated 18th May, 1836. The cause now came on for further directions on report and merits, and the reserved question, as to the priority of the deeds of 1821 and 1825 was debated.

The facts bearing on the reserved question were as follows:—

In 1815, a deed (admitted to be voluntary,) was executed by Frederick Hamilton to his wife, whereby he granted her an annuity of £100 a-year, and conveyed the bog of Clunah to secure the payment thereof. This annuity fell into arrear.

The deed dated the 26th September, 1821, which was the deed now in question, was made between Frederick Hamilton, of the first part; his said wife, Mary Hamilton, of the second part, and two trustees, H. S. Browning and William Bernard, of the third part. By this deed, (after reciting that unhappy differences had arisen between the said F. Hamilton, and Mary, his wife, which were likely to continue, and that they had agreed to live separate, and that the said F. Hamilton had agreed to grant his said wife an annuity of £600 a-year for her maintenance, and for the maintenance of their five children), the said Frederick Hamilton, in consideration of 10s., covenanted with the said trustees, Browning and Bernard, to pay an annuity'' of £600 a-year to the said trustees, in trust for his said wife, during the joint lives of himself, the said Frederick, and his said wife; the said annuity to be chargeable on the lands of Clunagh, Ballinamallagh, and Killshanroe, with power of distress and entry; and by the said deed, the said Frederick, for the considerations aforesaid, and the better to secure the said annuity, demised the said three denominations of land to the said trustees for 99 years; and it was thereby agreed, between all the parties, that if the said Frederick should ever be sued for any further provision or monies for the maintenance or alimony of his said wife, or any of their said children, or for any debts incurred by his said wife during the separation, or in case the said children should not be suitably maintained, then that the said Frederick might deduct such monies out of the annuity, and remove the children, and in the latter case might retain £60 a-year thereout for each child so removed, and in consideration of the premises, the trustees thereby covenanted that the said Mary should not sue or molest her said husband, or sue him for restitution of conjugal rights, or for alimony, or for any farther sum whatsoever. And it was thereby further agreed by the said trustees, their heirs, executors, and administrators, with the said Frederick Hamilton, his executors and administrators, that the said Mary should well and truly provide for, support, and educate the said five children, until the age of 21, or marriage, and that upon the death, marriage, attaining 21, or removal of any of the said children, £60 a-year for such child should be deducted out of the said annuity.

The above covenant by the trustees, that Mrs. Hamilton should support the children, was particularly relied on in the argument, as an independent covenant, and a sufficient consideration to support the deed.

Besides the considerations mentioned in the above deed, it was proved in the cause, that at the time of the making of the deed, Frederick Hamilton was raising money by the sale of part of his estates, and that the purchasers required his wife to join in the conveyances, which under the advice of her solicitor, Mr. Burrowes, she declined to do, until the above deed of Sept., 1821, should be executed by Frederick Hamilton. A written memorandum dated the same day as the deed of September, 1821, was proved in the cause, signed “H. S. Browning,” by which it appeared, that the deeds of conveyance to the purchasers were deposited with him after being executed by Mrs. Hamilton, to be held by him until the deed of September, 1821, should be executed and delivered by Frederick Hamilton.

It also appeared that it was part of the same arrangement, that the arrears due on foot of the voluntary deed, dated in 1815, should be surrendered by Mrs. Hamilton, and that the said deed of 1815, should be given up to be cancelled, in consideration of the execution of the deed of September, 1821. It was however denied, that any effectual surrender of these arrears had been made.

No allusion appeared in the deed of September, 1821, to any part of the above arrangements.

William Bernard, one of the trustees named in the above deed, was also the solicitor who prepared it, and was land agent and law agent to Frederick Hamilton.

Shortly after the above deed of 1821 was executed, Mr. Burrowes, the solicitor of Mrs. Hamilton, took it to the Registry office to have it registered. The officers were busy and he left the deed and the engrossment of the memorial in a press, in that office. When he returned, he found that the deed and memorial had been purloined or removed, and thus the registry of the deed was prevented.

Wm. Bernard's name was on the back of the lost instrument, he having prepared it. He was suspected of having got possession of it, and on 23d January, 1824, Mrs. Hamilton filed a bill in this court, making her husband and the said Wm. Bernard, and others, parties defendants, and charging that Bernard had got possession of the deed. Bernard was served with process, but never answered the bill, though he put in an answer for another defendant named Wilton, as his solicitor.

On the 3d June, 1825, pending the above suit, the mortgage (for which priority was now claimed over the deed of 1821,) was executed by Frederick Hamilton, to Bachelor, and the three denominations of land, comprised in the deed of 1821, were also included in the mortgage.

The same Wm. Bernard who had prepared the deed of 1821, and was a trustee therein, also prepared this deed of mortgage, and was employed in the mortgage transaction by Bachelor the mortgagee, as his agent therein, though still the land-agent and law-agent of the said Frederick Hamilton, the mortgagor.

This mortgage was duly registered.

At the time of the execution of the mortgage, Mrs. Hamilton, under the deed of 1821, was in receipt of the rents of the three denominations of land therein comprised, and which were also included in the mortgage.

Wm. Bernard died in 1828, never having answered the bill filed by Mrs. Hamilton in 1824. After his death the deed of 1821 was found amongst his papers, and Mrs. Hamilton recovered possssion of it.

The questions now were; first, whether the deed of September, 1821, was not a voluntary conveyance, and void for that reason, as against the subsequent mortgage in 1825, for valuable consideration. Secondly—supposing the deed of 1821, were not a voluntary instrument, whether it should not be postponed, being an unregistered instrument to the mortgage of 1825, which had been duly registered. Or whether Bachelor, the mortgagee, was to be presumed to have had notice through his agent Bernard, of the deed of 1821, so as to countervail the effect of the registry.

The Attorney-General, Mr. Blackburne, Q. C., Mr. Martley, Q. C., and Mr. J. Murphy, for the plaintiffs.

The deed in question purports to be a deed of separation between Mr. Frederick Hamilton and his wife. It recites, in the usual way, that differences had arisen between them. The parties to the deed are Mr. and Mrs. Hamilton, and two trustees. We contend, first, that it is a voluntary instrument, and void as against creditors for valuable consideration; and, secondly, that even if the court should hold it not to be a voluntary instrument, yet, not having been registered, it must be postponed to our mortgage, which, though of subsequent date, has been duly registered. As to the first question, is it voluntary?—The deed, as it stands, contains, on the face of it, no consideration sufficient to support it against creditors. The parties have, however, endeavoured to prove that there was a consideration not stated in the deed. Mr. Burrowes, one of the witnesses examined in the cause, thought proper, in answer to the concluding general interrogatory,* whether he knew any thing else material to the rights of the parties, to reply, by deposing to a long statement, which the parties now rely on as proving a consideration for that deed. He states, that in 1815, after the marriage of Mr. and Mrs. Hamilton, an annuity was granted to her by her husband; and though they admit that instrument of 1815 to have been voluntary, yet, they say that arrears on foot of it having been due in 1821, Mrs. Hamilton agreed to give up...