Patrick Fletcher Petitioner; and William Armstrong Steele, Heir-At-Law of Richard Steele, Deceased Respondent;

• Jurisdiction: Ireland
• Judgment Date: 14 June 1844
• Date: 14 June 1844
• Court: Rolls Court (Ireland)

And of the Acts of the 5 & 6 W. 4, c. 55, and 3 & 4 Vic. c. 105.

In the Matter of

Patrick Fletcher

Petitioner;

and

And William Armstrong Steele, Heir-at-law of Richard Steele, deceased

Respondent;

Rolls.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

A renewable freehold was by settlement limited to R., quasi in tail, with remainder over (in default of issue of R.), to W., his next brother. R. confessed a judgment, and afterwards died without issue, and without having opened the estate. W. was heir of R., and a sci. fa. to revive the judgment against the heir and tertenants having issued, W., being summoned simply as heir, allowed judgment to go. The judgment creditor then presented a petition for a receiver, against which W. came in to show as cause that he was in by title paramount, and not as heir of R. But the Master of the Rolls would not entertain the question of title; being of opinion that W. should have pleaded specially to the sci. fa., and that on the judgment creditor's petition, the Court could not look behind the judgment in sci. fa. by which the petitioner appeared to be clearly entitled to sue out an elegit and extend the lands.

The dominion of a tenant in tail in possession, over the estates of those in remainder and reversion, enabling him of his own will and by his own act, without the assent of any other person, to extinguish those estates and acquire the fee-simple for his own benefit, is not “a disposing power,” within the meaning of the nineteenth section of the 3 & 4 Vic. c. 105. The twenty-second section of that Act, making a judgment binding not only as against the debtor, but “also against the issue of his body and all other persons whom he might, without the assent of any other person, cut off and debar from any remainder, reversion, or other interest,” creates an equitable charge only, which cannot be enforced otherwise than by a suit in Equity.

This was a judgment creditor's petition for a receiver. It stated that in Hilary Term 1842, Richard Steele confessed to the petitioner a judgment for £86, to secure the principal sum of £43, and interest, and died in July 1843, seized of a freehold estate under a lease for lives still subsisting, in lands in the Queen's County (which with the gross and profit rents were particularly specified), and leaving the respondent his heir-at-law. That in Hilary Term 1844, the petitioner caused the judgment to be duly revived against the heir and tertenants; and that there was due to the petitioner on foot thereof, the principal sum of £43, together with the sum of £5. 2s. 3d. for interest, and £2. 1s. 11d. costs of entering said judgment, and £8. 10s. 4d. costs of reviving the same, making together the sum of £58. 15s. 5d. after all just allowances.

The respondent, having been served with notice pursuant to the Lord Chancellor's order on the petition and the 154th General Order, now came in to show cause.

It appeared that the lease bore date the 5th August 1785; and that the lessee, upon the marriage of his son George Steele, by deed of settlement, bearing date the 4tb of November 1797, assigned all his estate and interest to trustees, to the use of the said George Steele for life, with remainders to the first and other sons, issue of the marriage, successively, quasi in tail. That there were three sons, issue of the marriage, namely, Richard the conusor of the judgment, William Armstrong the respondent, and another. That Richard, upon his marriage, in the lifetime of his father (the tenant for life), executed a deed, bearing date the 14th of October 1826, to which the father was no party, purporting to be a settlement of the estate to the use of himself for life, with remainders (subject to a trust term for securing jointure) to the first and other sons of the marriage, successively, quasi in tail; and that he afterwards survived his father, and became seized in possession of the estate quasi in tail limited to him by the settlement of 1797, but died without issue in the year 1843. That the respondent did not plead to the scire facias, issued to revive the judgment confessed by Richard Steele, having been summoned and returned simply as heir; and having been advised by Counsel that he had no plea, but that the proceeding could not effect the estate which he acquired, not as heir of his brother Richard, but by title paramount, as remainderman under the...