Patrick Mullins v Guilfoyle

• Jurisdiction: Ireland
• Judgment Date: 25 January 1878
• Date: 25 January 1878
• Court: Exchequer Division (Ireland)

Ex. Div.

PATRICK MULLINS

and

GUILFOYLE.

Newstead v. SearlesENR 1 Atk. 265.

Clayton v. Earl WintonENR 3 Madd. 302, note (a).

Greene v. O'KearneyUNK 2 Ir. C. L. R. 267.

Lord Muskerry v. Chinnery 3 Law Rec. (N. S.) 290.

Persse v. Persse 7 Cl. & F. 279.

Thompson v. Webster 4 De G. & Jones, 600.

Ford v. StuartENR 15 Beav. 493.

Dickenson v. WrightENR 5 H. & N. 401.

Townsend v. TokerELR L. R. 1 Ch. App. 446.

Bayspoole v. CollinsELR L. R. 6 Ch. App. 228.

Teasdale v. Braithwaite L. R. 5 Ch. Div. 630.

Price v. Jenkins L. R. 5 Ch. Div. 619.

Clarke v. WrightENR 6 H. & N. 849.

Bentley v. MarkeyENR 31 Beav. 143.

Re Foster & Lister L. R. 6 Ch. Div. 87.

Atkinson v. SmithENR 3 De G. & J. 186.

Twyne's Case 1 Smith's Leading Cases, 1 (notes).

Doe v. JamesENR 16 East, 212.

Doe v. RutledgeENR 2 Cowp. 705.

Bullock v. Sadlier Amb. R. 764.

Humphries v. Pensam 1 Myl. & Cr. 580.

Robert v. WilliamsENR 4 Hare, 129.

Kelson v. KelsonENR 10 Hare, 385.

Pott v. Todhunter 2 Coll. Ch. Cases, 76.

Gale v. WilliamsonENR 8 M. & W. 405.

Doe dem. Otley v. ManningENR 9 East, 59.

Clayton v. Earl of Winton 6 M. & Sel. 67 (note).

Johnson v. Legard 6 M. & Sel. 60.

Massy v. TraversUNK 10 Ir. C. L. R. 459.

Teasdale v. Braithwaite 4 Ch. Div. 85: on app. 5 Ch. Div. 630.

Williams v. WilliamsELR L. R. 2 Ch. App. 294.

Currie v. Nind 1 M. & Cr. 17.

Buckle v. Mitchel 18 Ves. 100.

Hill v. Bishop of ExeterENR 2 Taunt. 71.

Doe d. Tatum v. Catomore 16 Q. B. 745.

Shaw v. BeckENR 8 Ex. 392.

Rosher v. WilliamsELR L. R. 20 Eq. 210.

Stackpoole v. StackpooleUNK 4 D. & War. 320; 6 Ir. Eq. R. 18.

Johnson v. LegardUNK 1 T. & R. 281.

Re Browne's Estate 13 Ir. Ch. R. 283.

Doe v. Manning 9 E. 59.

Roe v. Mitten 2 Wils. 356.

Browne's Estate 13 Ir. Ch. R. 295.

Doe v. ManningENR 9 East. 59.

Newstead v. SearlesENR 1 Atk. 264.

Heap v. TongueENR 9 Hare, 90.

Doe v. RutledgeENR 2 Cowp. 712.

Voluntary deed Parol evidence of agreement Consideration Fraudulent deed Statute of Fraudulent Conveyances.

VoL. II.] Q. B., C. P., & EX. DIVISIONS. 95 the said nolle prosequi, do show cause, on the 15th of April next, Ex. Div. why they should not pay to the said. George Knox the costs of the 1878. setting aside the said rule and nolle prosequi, and the costs of this ALMICK v. motion, Horan and Burke filing their affidavit (if any) on or before M -00RE. the 9th day of March next. FITZGERALD and. DowsE, BB., concurred. Solicitors for Mr. Knox : Ireldon Sons. Solicitors for the Plaintiff : Horan .4' Burke. Solicitor for the Defendant : G. S. B. Tinder. PATRICK MULLINS v. GITILFOYLE. Ex. Div. 1877. Voluntary deed-Parol evidence of agreement-Consideration-Fraudulent deed-Statute of Fraudulent Conveyances. Nov. 20, 21. 1. A and B being seised as tenants in common in fee-A, at the request of 1878. Jan. 24, 25. 13 (as in the deed recited), conveyed his moiety to the Plaintiff upon trust for B in case of his surviving A, and, after B's death, for the children of A ; and, by the same deed, B conveyed his moiety to the Plaintiff upon similar trusts for A and his children :-Held, upon the construction of the deed, that A was a purchaser for value of the limitations of B's moiety in favour of A's children, and, consequently, that the deed was not, as to B's moiety, voluntary within the Statute against Fraudulent Conveyances. 2. Parol evidence, given on the part of the Plaintiff, of a conversation with B, before the execution of the deed, showing that it was executed at the request of B, was held to have been rightly received. EJECTMENT on the title, for the recovery of the lands of Upper and. Lower Rahoon in the county of Galway. The Defendant took defence for an undivided moiety,of the lands. At the trial, before DOWSE, B., at the Galway Summer Assizes, 1877, the Plaintiff claimed. the entire interest under an indenture of the 19th of May, 1854, made between Anthony Richard Mullins and Thomas Kyne of the one part, and the Rev. Patrick Mullins of the other part. The Defendant contended. that this deed. was voluntary, and. claimed. to be entitled under an indenture of the 8th of October, 1868, made between the said. Thomas Kyne of the first part, the Defendant Edward Guil 96 LAW REPORTS (IRELAND). [L. R. Ex. Div. foyle of the second part, and the said Thomas Kyne of the 1877. third part. MULLINS The grantors in the deed of 1854 were tenants in common in Gunn-1'LE. fee of the lands sought to be recovered ; and the deed, after shortly reciting their title, and that they were seised in fee of certain fields at Rahoon, and were possessed for a term of years of a corn store in Back-street in the town of Galway, further recited : " And whereas the said Thomas Kyne, in consideration of the great love-and affection which he bears to the said Anthony Richard Mullins, his said partner and stepson, is desirous of settling all his right and interest in the several properties aforesaid on the said A. R. Mullins, in the event of his surÂÂviving him the said Thomas Kyne, and upon the children of the said Anthony by his present wife, in the event of the decease of the said Anthony, and with that view hath proposed to the said Anthony that they, the said Thomas Kyne, and A. R. Mullins, should severally assign and convey to the said Rev. Patrick Mullins all their right and interest in the several properties aforesaid, upon the-trusts and for the uses and purposes hereinafter mentioned and expressed, to which proposal the said A. R. Mullins hath agreed." The deed then witnessed that in consideration of the premises, and for a nominal consideration to A. R. Mullins and Thomas Kyne paid by the Plaintiff, they released to him the lands of Upper and Lower Dangan and the fields at Rahoon, and assigned to him the store for the residue of the term, subject to the payment of the rent reserved by and performance of the covenants contained in the demise ; and the deed then declared that the lands of Dangan were released to the Plaintiff, in trust, after payment of 1100, due by A. R. Mullins and Thomas Kyne, to permit A. R. Mullins and Thomas Kyne, and the survivor of them, to hold the respective moieties during their lives, and the life of the survivor of them, with remainder, as to the moiety of A. R. Mullins, to D. V. Mullins for life, with remainder to the heirs male of his body, with other remainders for the benefit of the other children of A. R Mullins and their issue. The uses of Thomas Kyne's moiety, after his decease, were to permit and suffer D. V. Mullins, and his heirs, and the other children of A. R. Mullins (by name), or their heirs, to hold Thomas. Kyne's moiety under and subject to the like limitations as therein-before expressed concerning A. R. Mullins' moiety. Vol.. II.] Q. B., C. P., & EX. DIVISIONS. 97 The deed then declared the trusts of the store, to which it is Ex. Div. unnecessary to refer, and charged each moiety of the lands of 1877. Dangan with a separate sum of 1000, one-half to be paid. to Mary MULLINS V. Anne Mullins on her attaining the age of eighteen, or on her GUILFOYLE. marriage, and the residue to Thomas P. Mullins and Eustace C. Mullins, in equal shares, on attaining the age of twenty-one years. As to the fields at Rahoon, the trusts, after the death of the survivor of A. R. Mullins and Thomas Kyne, were declared, as to A. R. Mullins' moiety, for Bernard Mullins, his second son, for life, with remainder to the heirs male of his body, with divers remainders over in favour of the other sons of A. R. Mullins; and., as to Thomas Kyne's moiety, to permit and suffer Bernard Mullins and his heirs to hold the same, subject to the like limitations as were thereinbefore expressed concerning A. R. Mullins' moiety ; and it was covenanted that, in the event of Bridget Kyne, wife of Thomas Kyrie, surviving her husband, she should receive 50 per annum out of the real and personal estate of A. R. Mullins and Thomas Kyne, as a jointure and maintenance during her natural life. A leasing power for any term of years or lives was conÂÂferred on A. R. Mullins and Thomas Kyne, or the survivor of them. Several witnesses were examined on behalf of the Plaintiff, amongst whom was Joseph Murphy, a solicitor, who stated that he was a brother-in-law of A. R. Muffins ; that he first knew Thomas Kyne as a partner in Mullins and' Kyne ; that Kyne lived with Mullins up to 1854, the year in which Dangan was purÂÂchased ; that he engrossed and witnessed the deed of the 19th of May, 1854 ; that before the deed was executed he had a converÂÂsation with Thomas Kyne, who told him that a will had been executed by A. R. Mullins, leaving his property, like and like, among his children ; that Denis, the eldest boy, was his (Kyne's) godson, and that he wished a further provision for him and the rest of the children other than that in their father's will, and wanted to know how that was to be done ; that he (Murphy) suggested that instead of this property going share and share alike among the children, he and Anthony Richard should join in a deed giving Denis the entire interest, subject to charges for the other children ; and that as the purchase-money was 4000, 2000 VOL. II. 98 LAW REPORTS (IRELAND). [L.R.L Ex. Div. would be a fair sum for the younger children ; that of the 2000, 1877. 1000 should be set apart for the only girl, because if she came 311ThLuTs to be settled in after-life it would save complications ; that Syne V. GUIT.FOYLE. assented to these suggestions, and said it would be a capital arrangement ; that at his request he went into the house to ascerÂÂtain if A. R. would give his consent, and came back, saying that Anthony Richard had given his full assent ; that in engrossing the deed he (Murphy) put in no provision in it that Syne did not give instructions for. About ten or eleven days after the execution of the deed, A. R. Mullins died. [The evidence from the words " he had a conversation with Thomas Syne," was objected to on behalf of the Defendant, but was admitted...