Power v Power

• Jurisdiction: Ireland
• Judgment Date: 24 June 1858
• Date: 24 June 1858
• Court: Court of Appeal in Chancery (Ireland)

Ch Appeal.

POWER

and

POWER.

Jackson v. ParkerENR Amb. 687.

Hall v. DenchENR 1 Vern. 329, 342.

Parsons v. FreemanENR 3 Atk. 741.

Jackson v. ParkerENR Amb. 687.

Arthur v. BokenhamENR 11 Mod. 148.

Sparrow v. HardcastleENR 3 Atk. 798.

Parsons v. FreemanENR 3 Atk. 741.

Goodtitle v. OtwayENR 7 T. R. 399.

Darley v. Darley 3 Wils. 1.

Harmood v. Oglander 8 Ves. 106.

Vawser v. Jeffrey 16 Ves. 519; S. C., 2 Swanst. 268.

Slater v. DangerfieldENR 15 M. & W. 263.

Luther v. KidbyENR 3 P. Wms. 170 n.

Rider v. WagerENR 2 P. Wms. 334.

Plowden v. Hyde 2 D., M. & Gor. 684.

Maundrell v. Maundrell 10 Ves. 256.

Poole v. CoatesUNK 2 D. & War. 493; S. C., 1 Con. & Law. 531.

Hodges v. GreenENR 4 Russ. 28.

Williams v. Owens 2 Ves. jun. 595.

Rawlins v. Burgis 2 Ves. & B. 382.

Harmood v. Oglander 8 Ves. 107.

Lock v. FooteENR 5 Sim. 618.

Casburne v. Inglis Lee's Rep., temp. Hardw. 401.

The King v. WinstanleyENR 1 C. & J. 434.

Sparrow v. Hardcastle 1 Lord Ken. 70.

Rider v. WagerENR 2 P. Wms. 334.

Luther v. KidbyENR 3 P. Wms. 169. n.

Webb v. Temple Freem. Law Rep. (541) C. 735.

Harmood v. Oglander 8 Ves. jun. 106.

The Attorney-General v. Vigor 8 Ves. 56.

Duppa v. MayoENR 1 Saund. 278, g.

Walker v. ArmstrongENR 21 Beav. 284.

Bulkly v. Wilford 2 C1. & Fin. 102.

178 CHANCERY REPORTS. 1858. Ch. Appeal. POWER v. POWER. THIS case came before the Court by appeal from an order made by his Honor the Master of the Rolls (supra, vol. 7, p. 354). The facts of the case are fully stated in the judgment of his Honor and in that of the LORD CHANCELLOR. Mr. David Lynch and Mr. Lawson, for the petitioner. A mortgage is not, in contemplation of a Court of Equity, an absolute revocation of a will, it is only a revocation pro tanto : Jackson v. Parker (a); Hall v. Dena (b) ; Parsons v. Freeman (c). The disentailing deed was only a portion of the mortgage transacÂtion, and another mode adopted of carrying out the suggestion of Counsel; and the general rule respecting mortgages must govern this case. A Court of Equity will consider the substance and inÂtention of the whole transaction, and that manifestly was only to give effect to the mortgage. The recovery having effectually barred the estate tail, the disentailing deed had no statutable effect whatÂever. Mr. Brewster, Mr. J. E. Walsh and Mr. Thomas Harris, contra. If this had been a fine or recovery, it would have revoked the will, and a disentailing deed has even a more extensive operation than either fine or recovery. Besides, this is not a mere portion of the mortgage arrangement; the deed includes other lands, which shows that it was a substantive dealing with the lands. The opinion of Counsel is not properly admissible in evidence. There was a new seisin created, which lasted several days before the execution of this mortgage, so that the two deeds cannot be properly treated as one transaction. (a) Amb. 687. (b) 1 Vern. 329, 342. (c) 3 Atk. 741. CHANCERY REPORTS. 179 The following authorities were mentioned in the argument : Jackson v. Parker (a); Roll. Ab., p. 615, pl. 1, p. 616, p1. 2 ; Arthur v. Bokenham (b); Sparrow v. Hardcastle (c); Parsons v. FreeÂman (d); Goodtitle v. Otway (e); Darley v. Darley (f) ; Harmood v. Oglander (g); Vawser v. Jeffrey (h); Slater v. Dangerfield (1) ; Dither v. Kidby (10; Rider, v. Wager (1); Plowden v. Hyde (m); Maundrell v. Maundrell (n); Poole v. Coates (o); Hodges v. Green (p); Williams v. Owens (q); Rawlins v. Burgis (r). The LORD CHANCELLOR. This case comes before us on an appeal from the decree proÂnounced by his Honor the Master of the Rolls, by which he dismissed without costs the petition which has been filed in the present suit. The material facts are few, and may be shortly stated. It appears that in the year 1832, Edward James O'Neill Power was seised as tenant in tail of the lands of Killure, and certain other lands, all situated in the county of Waterford ; and that in Easter Term of that year he suffered a recovery of all the lands, to the use of himself and his heirs. On the 9th of May 1834, he made his will, by which he devised the lands to the petitioner and his heirs. Subsequently he entered on a negociation for the purpose of borrowÂing a sum of £3000 from persons of the name of Madden, upon the security of a mortgage of the lands of Killure ; and their Counsel required that he should execute a deed, to be enrolled pursuant to the statute, for the purpose of barring the entail of the lands of Killure, raising some objection, I presume, to the efficacy of the recovery previously suffered. Accordingly, on the 7th of September (a) Amb. 687. (b) 11 Mod. 148. (c) 3 Atk. 798. (d) 3 Atk. 741. (e) 7 T. R. 399. (f) 3 Wits. 1. (g) 8 Yes. 106. (h) 16 Yes. 519; S. C., 2 Swanst. 268. (1) 15 M. & W. 263. (k) 3 P. Wins. 170 n. (1) 2 P. Wis. 334. (in) 2 D., M. & Gor. 684. (n) 10 Yes. 256. (o) 2 D. & War. 493; S. C., I Con. & Law. 531. (p) 4 Russ. 28. (q) 2 Yes. jun. 595. (r) 2 Yes. & B. 382. 180 CHANCERY REPORTS. 1858. 1836, Edward James O'Neill Power executed...