Odlum v Thompson

• Jurisdiction: Ireland
• Judgment Date: 18 May 1893
• Date: 18 May 1893
• Court: Chancery Division (Ireland)

V.-C.

ODLUM

and

THOMPSON.

Thomas v. SylvesterELR L. R. 8 Q. B. 368.

In re Blackburn Benefit Building Society, Ex parte GrahamELR 42 Ch. D. 343, 349.

Swift v. KellyUNK 24 L. R. Ir. 107; on app. 478.

Christie v. Barker 53 L. J. Q. B. (N. S.) 537.

Searle v. Cooke 43 Ch. Div. 519.

Booth v. SmithELR 14 Q. B. Div. 318.

Whitaker v. Forbes 1 C. P. Div. 51.

vesterELR L. R. 8 Q. B. 368.

Searle v. Cooke 43 Ch. Div. 519.

Booth v. SmithELR 14 Q. B. Div. 318.

Roscoe, Real Prop. Actions, 64, 65.

The Blackburn Benefit Building Society, Ex parte Graham 42 Ch. Div. 343.

Thomas v. SylvesterELR L. R. 8 Q. B. 368.

Swift v. KellyUNK 24 L. R. Ir. 107, 478.

Billinghurst v. SpeermanENR 1 Salk. 297.

Buckley v. Pirk Ibid. 317.

Building Society 42 Ch. div. 343.

Searle v. Cooke 43 Ch. Div. 519.

Thomas v. SylvesterELR L. R. 8 Q. B. 368.

Christie v. Barker 53 L. J. Q. B. (N. S.) 537.

Rentcharge — Personal liability of pernor of profits.

394 LAW REPORTS (IRELAND). [L. R.I. Probate. Shell, for the plaintiffs :- We think this is a proper case for the Court to exercise its jurisdiction. THE Couut made an order in the terms of the notice of motion. Solicitor for plaintiffs: J. 0' Hagan. Solicitors for defendants : Fottrell 8r Sons. R. W. L. In an action for recovery of arrears of a rentcharge, the plaintiff, in addition to the ordinary decree, declaring the rentcharge well charged, and for an account and a receiver, claimed that the defendant, as pernor of the profits, might be personally ordered to pay the arrears, irrespective of the amount of profits received by him, and sought for an account of the slims received, or which ought to have been received and applied in payment of the rentcharge. The defendant made a prima facie case that the profits were not sufficient to pay the rentcharge in full, and submitted to a decree declaring the rentcharge well charged, and to account for the rents and profits received : Held, that the defendant was personally liable only to the extent of any profits which he had received, or ought reasonably to have received, and that the remedies against the land and against the defendant personally were inconsistent. If a prima facie case of deficiency is made the defendant is entitled to an inquiry. ACTION to have an annuity or yearly rentcharge of £50 declared well charged upon the lands known as Archbold's farm, containing about 30 acres Irish, situate in the barony of DunÂboyne and county of Meath, and to have the defendant personally ordered to pay the sum of £50, being the gales of the annuity which accrued on the 1st February and 1st August, 1892 ; and, if necessary, that accounts might be directed what sum was due to VOL. XXXI.] CHANCERY DIVISION. 395 the plaintiff by the defendant in respect of the said annuity, and V.-C. what sum the defendant received, or ought to have received and 1893. applied in payment of said annuity ; and for a receiver. ODLIIM v. The statement of claim, which had been amended by leave, THOMPSON. stated an indenture dated 28th October, 1869, whereby Thomas Higginbotham Thompson, who was owner in fee of said lands, granted to the plaintiff for her life, for her separate use, an annuity or yearly rentcharge issuing out of the said lands, payable by equal half-yearly payments on each 1st February and 1st August. Thomas H. Thompson, by his will dated 5th February, 1885, devised the said lands, subject to the said annuity, to the deÂfendant, and died on 27th May, 1886 ; and thereupon the defenÂdant entered into possession and into receipt of the rents and profits, and paid the annuity up to and including 1st August, 1891. Paragraphs 7, 8, 9, and 10 of the statement of claim were as follows :-" 7. The defendant is now owner in fee of said lands and has a large beneficial interest therein expectant on the determinaÂtion of said annuity, and the value of the fee of said lands, if sold, would largely exceed the value of said annuity. 8. The defendant received large profits out of said lands and sufficient to pay the gales of said annuity now due in full. 9. The plaintiff submits that the defendant, having entered into possession, and having received such rents and profits as aforesaid, is personally liable as terre tenant and devisee of said lands to pay the said gales of said annuity which accrued due on the 1st February, 1892, and 1st August, 1892, whilst he was in possession of said lands as aforeÂsaid. 10. The plaintiff is aware that the defendant contends that he has only received rents and profits to discharge said anÂnuity in part, and that he is only bound in discharging said annuity to account for the rents and profits to such extent, notwithÂstanding that at the time of the accrual of said gales of said annuity he was and still is in the beneficial occupation of said lands ; the plaintiff however submits that, even on the assumption that the rents and profits were not sufficient to discharge 'said annuity in full, yet the defendant is personally liable, as terre tenant and devisee of said lands, to pay the said gales of said annuity which accrued on the 1st February and 1st August aforesaid." 396 LAW REPORTS...