Persse v Persse

• Jurisdiction: Ireland
• Judgment Date: 12 June 1852
• Date: 12 June 1852
• Court: High Court of Chancery (Ireland)

Chancery.

PERSSE

and

PERSSE.

Abraham v. Twigg Cro. Eliz. 478.

Richardson v. NixonUNKUNK 2 J. & Lat. 250; S. C. 6 Ir. Eq. Rep. 335.

Padwick v. PlattENR 11 Beav. 503.

Fulham v. M'CarthyENR 1 House of Lords Cases, 703.

Beresford's caseUNK 7 Rep. 135.

Shelley v. Lady Earsfield 1 Ch. Rep. 110.

Saunders v. Lord Annesley 2 Sch. & Lef. 73.

Underwood v. Lord Courtown 2 Sch. & Lef. 65.

Massey v. BatwellUNK 4 Dr. & War. 56; S. C. 5 Ir. Eq. Rep. 382.

Stevens v. Bagwell 15 Ves. 139.

Wood v. Downes 18 Ves. 127.

Bayley v. TyrrellUNK 2 Ball & B. 263.

Prosser v. EdwardsENR 1 Y. & C. Ex. 481.

191 c114-11C1ji,T Rgr9I1Pf 1852. - Chancery. PERSSE v. PE3SW June 7, 9, (In, Chancery). 10, 12. By a deed of BY a settlement, boring date the 11th of November 1826, executed 1827, R. P. covenanted on the marriage of Dudley Persse with Miss Catherine O'Grag)y, 4e, with his son D. P., that conveyed the Roxborough estate (of which he was seised, subjeet to after the de- cease of R. P. an annuity of 500 a-year to his father Robert Persse, under a deed P., the estate which should of 1823) to trustees to the use of himself for life, remainder to w thereupon de- trustees to preserve contingent remainders, remainder, subject to scend to or vest in R. P., two terms for 99 and 500 years, to secure a jointure and younger should be con veyed to cer tain uses. It. P. P. was found a lunatic, but in 1820 he had made a will, under which, if valid, G. P. took an estate tail. In 1830, the lunatic being dead, R. P., in violation of his covenant, conveyed the estate to R. H. P. In 1832 an ejectÂÂment was brought by those claiming under the will of the lunatic, at the trial of which R. P. and R. H. P. disputed the will. The conveyance of 1830 was set aside by a decree of the House of Lords, by which D. P. and his children were declared entitled, as against R. P. and R. H. P., to the benefit of the deed of 1827, and it was referred to the Master to settle a conveyance. The Master, by his report in 1843, found that D. P. had not laid before him any conveyance. In 1841, H. P. being in possession, a compromise was entered into between him and G. P., and two deeds were executed, by one of which G. P. released all right and title to the estate to R. H. P., in consideration of a conveyance of a portion of the estate which was made by the other deed. A supplemental bill having been filed by D. P. and his children to carry the decree of the House of Lords into exeÂÂcution against R. H. P. and G. P., who was not a party to the original suit Held 1.-That though the plaintiffs had not availed themselves of their right of having a conveyance under the decree, they had not forfeited their right to the benefit of it, as R. H. P. had by the deeds of 1841 disabled himself from conveying the legal estate. 2.-That the first deed of 1841 being a release, and not a conveyance, was an acknowledgment of the estate by descent in R. H. P., and operated to confirm that estate, and therefore that the plaintiffs were entitled to have the Lords' decree enforced against G. P. (as claiming under R. H. P.), although he was not a party to the original suit. The uses to which the estate was to be conveyed by the deed of 1827 Are to D. P., remainder to the first and every other son of his first marriage successively, and the heirs male of each such son lawfully issuing, remainder to the right heirs of D. P., who, on the settlement executed on his second marriage, conveyed his supÂÂposed reversion to the use of the children of the second marriage. D. P. and his children of both marriages were plaintiffs in the original and supplemental suits. Quare-Whether the fee vested in the sons of the first marriage, and whether the children of the second marriage took any estate ? But as the House of Lords had declared that the children of the second marriage were. entitled to the benefit of the deed of 1827, the Court held that there was no misjoinder of plaintiffs in the supplemental suit. CHANCERY REPORTS. 197 children's portions, to the first and every son of the marriage succos- 1852. - - sively, " and the heirs male of each such son lawfully issuing," Chancery SSE PE R remainder to his own right heirs. There was issue of the marriage v. Dudley Persse the younger, and Catherine Henrietta Persse and PERSSE. Maria Persse. Catherine Persse, otherwise O'Grady, died in 1829. Statement_ By an indenture, bearing date the 8th of December 1827, and made between the said Robert Persse of the one part, and Dudley Persse his son and heir-at-law of the other part, reciting that Robert Parsons Persse was seised in fee of the Castleboy estate, and that, in the event of his dying without issue, Robert Persse would be entitled to the said estate as the cousin and heir-at-law of the said Robert Parsons Persse, and that he was unmarried, and in a state of mental and bodily imbecility, and that it was necessary for the protection of his person and property to sue out a commission of lunacy against him, and to institute certain legal proceedings, and that Dudley Persse had agreed to do so at his own expense ; and furÂÂther reciting that in consideration of such agreement, and of natural love and affection, Robert Persse had agreed that his said expectancy upon the decease, of Robert Parsons Persse should stand limited to the use of the said Robert Persse for life, and after his decease to the uses thereinafter limited : in consideration of the said agreement, and of natural love and affection, the said Robert Persse, for himself, his heirs and assigns, covenanted with the said Dudley Persse, that 'after the decease of Robert Parsons Persse, the Castleboy estate, which on his death should descend to and vest in Robert Persse, should be and remain to and be vested in Dudley Persse, and should accordingly be conveyed to him to the use of Robert Persse for life, and after his death for the several uses, estates and limitaÂÂtions, &c., as ,were expressed of and concerning the Roxborough estate, in the settlement of the 1 1 th of November 1826. Dudley Persse, at his own expense, caused a commission of lunacy to be issued in 1828, and Robert Parsons Persse was found a lunatic by the inquisition. He died on the 25th of October 1829, and Robert Persse thereupon became seised of the Castleboy estate., In 1833, Dudley Persse.ma.rried Fra ees Barry, and,on •the eeek 198 CHANCERY REPORTS. sion of the marriage a settlement was executed, bearing date they 15th of July 1833, by which the reversion of the Roxborough estate, after the limitations of the settlement of the llth of November 1826, was conveyed to trustees to the use (subject to a term of 1000 years) of Dudley Persse for life, remainder to trustees to preserve contingent remainders, remainder to the first and other sons of the second marriage in tail, remainder to the right heirs of Dudley Persse ; and Dudley Persse covenanted that, when he should become actually possessed of the Castleboy estate, he would settle the same to the same uses as were thereby expressed concerning the RoxÂÂborough estate. By a deed of the 9th of June 1830, reciting that Robert Persse had, by an indenture of the 1st of May 1823, sufficiently provided for his eldest son Dudley Persse, and that he was seised in fee in possession of the Castleboy estate, Robert Persse, in consideration of 16,000, secured by the bond and warrant of attorney to confess judgment of Robert Henry Persse, conveyed the Castleboy...