Re Fitzmaurices Minors

• Jurisdiction: Ireland
• Judgment Date: 03 May 1864
• Date: 03 May 1864
• Court: Rolls Court (Ireland)

In re Fitzmaurices Minors.

Rolls.

CHANCERY REPORTS,

BEING A SERIES OF

CASES ARGUED AND DETERMINED

IN THE

HIGH COURT OF CHANCERY,

COURT OF APPEAL IN CHANCERY,

Rolls Court, Landed Estates Court,

AND

COURT OF BANKRUPTCY AND INSOLVENCY.

By order of reference, dated 11th of June 1860 in this matter, the Master was amongst other things directed to inquire and report whether the minors were entitled to any and what real estate, and if so, what charges affected the same, with the amount due for principal and interest thereon. Under this order of reference, Mrs. Elizabeth Bateman (who had previously, upon the 7th of September 1860, presented a petition for sale of the minors' estates in the Landed Estates Court) filed a charge, claiming to be entitled to two sums of £5500 and £1500, as mortgages affecting the real estate of the minors, together with a large arrear of interest thereon, under the following circumstances:—

By deed of family settlement bearing date the 21st of March 1860, made between Maurice Fitzmaurice, tenant for life, Oliver Fitzmaurice, tenant in tail in remainder, G. B. Hickson, and W. Gleeson, trustees, and others, the estate tail which was then vested in Oliver Fitzmaurice was duly barred, and the estates were conveyed to Hickson and Gleeson for a term of 1000 years, and subject thereto to Maurice Fitzmaurice for life; remainder to Oliver Fitzmaurice for life; remainder to his first and other sons in tail; remainder to his first and other daughters in tail, with remainders over and an ultimate remainder to Oliver Fitzmaurice in fee. The trusts of the term of 1000 years were declared to be, amongst others, that the trustees should, with the consent of Oliver Fitzmaurice, raise by mortgage of the term a sum of £5500, to be applied as in said deed mentioned; and, further, to raise such other sum as Oliver Fitzmaurice and Robert Day Stokes, in said deed mentioned, should direct to be so raised.

By deed of mortgage, dated the 22nd of June 1839, the trustees and Oliver Fitzmaurice duly executed to the trustees of Elizabeth Bateman a mortgage of the said term of 1000 years, in consideration of the sum of £5500 then advanced by Mrs. Bateman.

By further deed of mortgage, dated the 10th day of April 1849, the same trustees, by the direction of Oliver Fitzmaurice and Robert Day Stokes, who joined in the deed, executed a further mortgage of said term, to secure the sum of £1500 then advanced by Mrs. Bateman.

By deed of marriage settlement, bearing date the 24th of April 1855, executed upon the intermarriage of Oliver Fitzmaurice and Alicia Gabbett, the father and mother of the minors, Oliver Fitzmaurice executed a power of jointuring, and charging portions for younger children reserved to him in said deed of the 21st of March 1839.

Maurice Fitzmaurice died in the year 1840; whereupon Oliver Fitzmaurice entered into possession of the lands charged with the mortgages, as tenant for life, pursuant to the limitations of the deed of 21st of March 1839, and continued in such possession until his death, which happened on the 17th of April 1859.

The interest upon the mortgage for £5500 was paid up to the year 1844; but subsequently to that date, considerable arrears of interest were allowed to accrue due; and upon the 28th day of February 1857, an account was stated and settled on foot of interest upon the mortgage for £5500, between Oliver Fitzmaurice and George Fitzmaurice, who was the agent of Mrs. Bateman. By this account interest was only brought down to the 25th of March 1854; and all the payments previous to March 1854 were set off against this interest, striking a balance against Oliver Fitzmaurice up to the 25th of March 1854, of £1668. 8s. 7d., being more than six years' interest prior to 25th of March 1854. The account was in the following form.*

No interest was taken into account upon the mortgage for £1500. Certain payments were made on account of interest by Oliver Fitzmaurice, in the interval between the 25th of March 1854 and 28th of February 1857; and such payments continued

from the 28th of February 1857 up to the death of Oliver Fitzmaurice on the 17th of April 1859; but they were not in any case payments amounting to an exact gale of interest on either mortgage. The agent of Mrs. Bateman filed an affidavit in the matter, for the purposes of the account in the Master's office, by which he swore that all these several payments were made generally on account, and were not at the time of payment appropriated in any way by either party.

On the 7th of September 1860, Mrs. Bateman presented a petition in the Landed Estates Court.

Upon the 10th day of June 1861, Mrs. Bateman and her trustees filed their charge under the order of reference, the schedule of which was framed in the following manner:—The sum of £1668. 8s. 7d. was assumed as the sum due on the £5500 mortgage upon the 25th of March 1854; and interest upon the £1500 mortgage was calculated from the date of the mortgage (10th of April 1849) to the same day. These two sums were then treated as a consolidated sum; and the payments made subsequently to the 25th of March 1854 were deducted therefrom, adding the subsequent interest and making annual rests. The amount claimed on foot of this account up to the 31st of May 1861 was £10,023. 7s. 6d.

The Master was of opinion that the settled account of the 28th of February 1857 was an acknowledgment in writing by Oliver Fitzmaurice, which was sufficient to prevent the bar of the Statute of Limitations to the extent of six years previous to its date; and he further considered that the appropriation, upon the 28th of February 1857, of all sums paid prior to the 25th of March 1854, to the interest upon the mortgage for £5500, operated as an appropriation to the interest of the same mortgage of the sums paid between the 25th of March 1854 and 28th of February 1857. He therefore took the account in the following manner; he kept the interest account upon the two mortgages distinct. With respect to the mortgage for £5500, he allowed six years prior to the 28th of February 1857, and appropriated the payments between the 25th of March 1854 and 28th of February 1857 to the interest which accrued prior to the 28th of February 1851, which was barred by the 3 & 4 W. 4, e. 27, s. 42. He then allowed eleven-fourteenths of the payments subsequent to the 28th of February 1857 up to the date of his report, against the interest on the mortgage for £5500, from the 28th of February 1851 to the date of his report.; the mortgages being to each other in the proportion of eleven to three. With respect to the interest upon the mortgage for £1500, he allowed six years prior to the filing of the charge, and set off against this interest the remaining three-fourteenths of the payments subsequent to the 28th of February 1857, and up to the date of the report.

To this report an objection was filed on behalf of the minor, “that the account of 28th of February 1857, being an acknowledgment by a tenant for life, was not binding upon the minor, and was not sufficient to deprive her of the benefit of the Statute of Limitations.”

Argument.

The Solicitor-General and Mr. Rogers, for the objection.

An acknowledgment of arrears of interest being due, made by a tenant for life, is not sufficient, under the 42nd section of 3 & 4 W. 4, c. 27, to deprive the remainderman of the benefit of the statute. In Smith v. Smith (a) the Court is represented as having expressed an opinion that such an acknowledgment would operate to bind the remainderman; but this is only a dictum; the question was not at all argued in that case, and it was unnecessary to decide it. It is contrary to principle that an acknowledgment signed by one man should bind another who does not derive under him, and is not in privity; the only case in which it has been admitted is in the case of a continuing joint contract; but if the contract is severed by the death of one co-contractor, the acknowledgment of the survivor is of no effect: Atkins v. Tredgold (b). The acknowledgment of a person representing one estate will not bind the representative of another, as the acknowledgment of an executor will not bind an heir: Putnam v. Bates (c). And this will hold even when the same person is executor and trustee of the real estate: Fordham v. Wallis (d). But the cases where one person can bind another by such an acknowledgment are strictly confined to cases of continuing joint contract. The late case of Boulding v. Lane (e) decides that an acknowlegment given by a mortgagee in possession to a first mortgagee has no effect to prevent the bar of the statute, as respects a second mortgagee. In principle there is no difference between that case and the present; and the rule which Lord Westbury lays down in that case, namely, that an acknowledgment prevents the bar of the statute only as respects the party himself, and those deriving under him, strictly applies here, to render this acknowledgment of no avail against the minor.

Mr. Brewster and Mr. Berkeley, contra.

The principle to be deduced from all the cases is, that where a payment or acknowledgment in writing is made by a party who in law represents the estate sought to be made liable, the estate will be bound. Privity between the person making the acknowledgment and the person sought to be bound has never been

considered necessary. Thus, in cases of continuing joint contract, a payment or acknowledgment by one co-contractor bound the other, even though the debt were barred by the statute; Goddart v. Ingram (a); Channel v. Ditchburn (b). This was on the principle of representation, not privity. In the leading case, Whitcomb v. Whiting (c), Lord Mansfield expressly puts it on this ground—he says, “Payment by one is payment by all; the one acting virtually as agent for the rest.” In Warrens v. O'Shea (d), a payment by one obligor in a bond was held to take a debt out of the statute as respected the representative of his co-obligor. From...