Re M'Crohan

• Jurisdiction: Ireland
• Judgment Date: 24 January 1893
• Date: 24 January 1893
• Court: Chancery Division (Ireland)

Bankruptcy.

Before MILLER, J.

IN RE M'CROHAN

Spackman v. MillarENR 12 C. B. (N. S.) 659, 678; per Williams, J.

Ex parte Harding; In re FairbrotherELR L. R. 15 Eq. 223.

In re StevensonUNK 27 L. R. Ir. 309.

Ex parte Bishop: In re TonniesELR L. R. 8 Ch. App. 718.

Ex parte Bolland: In re ClintELR L. R. 17 Eq. 115.

Trusts 7 Ch. Div. 635.

Ex parte Todd: In re AshcroftELR 19 Q. B. Div. 186.

Lyster v. BurroughsUNK 1 Dr. & Wal. 149.

Metcalfe v. Archbishop of York 1 M. & Cr. 547.

Mornington v. KeaneENR 2 De G. & J. 292.

Galavan v. DunneUNK 7 L. R. Ir. 144.

Bankruptcy Trader Marriage settlement 1872, s. 52.

VOL. XXXI.; CHANCERY DIVISION. 225 IN RE XPOROHAN (1). Bankruptcy, 1892. Bankruptcy-Trader-Marriage settlement-Charge on after-acquired pro- Nov. 4. perty-Bankruptcy (Ireland) Amendment Act, 1872, s. 52. 1893. In 1883 A, a trader, by settlement executed on his marriage with B, in Jan. 24. consideration of B's marriage portion paid to him, amounting to 600, assigned to trustees the leasehold premises in which he carried on business, and all proÂÂperty then belonging to him, or thereafter until the raising of the said sum of 600 to be acquired by him, including book debts, upon trust for A, or until he should commit an act of bankruptcy, or be adjudicated bankrupt ; and upon his death, or the happening of such events, in trust to levy and realize out of the property thereby assigned the said sum of 600, to be held in trust for B and the children of the marriage, with power to the trustees in any such case to enter upon the premises of A, and seize the said property. And it was thereby declared that all the future property of A thereby expressed to be as signed should be subject to the trusts of the settlement, and to the powers, covenants, and provisions therein, although the same or any part thereof might not be capable of passing at law by the assignment thereinbefore contained. A was allowed by the trustees to remain in undisturbed possession.of the property he had at the time of the settlement, and all property subsequently acquired by him until after he was adjudicated a bankrupt in 1892, when his assets were taken possession of by the Court : Held, that the settlement, in so far as it purported to charge the after-acquired property of A not actually paid or transferred at the date of the adjudication was void as against his assignees in bankruptcy, under section 52 of the Bankruptcy (Ireland) Amendment Act, 1872. The Court reserved liberty to the surviving trustee of the settlement to prove for any balance due after application of any funds to which his claim properly attached. CHARGE by Michael Molony, surviving trustee of the settleÂÂment, dated the 25th July, 1883, made on the marriage of the bankrupt and his wife, Bridget M'Crohan, then Bridget Molony, seeking for a declaration, that the sum of 600 therein mentioned, being the wife's fortune, might be declared well charged on the house and premises, and the license thereof, in the charge (1) Before MILLER, J. Vot. XXXI. the bankrupt, at the time of his bankruptcy, and on debts due and owing to him at that date ; and consequential relief. The charge was supported by an affidavit of the chargeant. The assignees by their discharge stated that on the 10th May, 1892, the date of the dismissal of a petition for arrangement by the bankrupt, and on the 13th May, 1892, the date of adjudication, the bankrupt had in his order or disposition the stock-in-trade and other personal property claimed in the charge, including book debts due to him in the course of his business, whereof he was the reputed owner, or had taken upon himself the sole order or disÂÂposition, as owner, with the consent or permission of the chargeant, or other the true owner of the same ; and the assignees sought for an order for sale of the same for the benefit of the creditors under the bankruptcy. In the alternative, as to so much of the charge as related to property acquired by the bankrupt since the date of the settlement, the assignees contended that, as to such property, the settlement was void, as against them, under the 52nd section of the Bankruptcy (Ireland) Amendment Act, 1872. The material portions of the settlement and the general facts of the case are fully stated in the judgment of Miller, J., infra. p. 227. Carton, Q.C., and J. Pim, for the chargeant. Roche, Q.C., and R. Doyle, for the assignees. The following authorities were referred to :-As to reputed ownership : Spackman v. Millar (1) ; Ex parte Harding; In re Fair-brother (2) ; In re Stevenson (3). As to limitations over on bankÂÂruptcy : Yate Lee, Bankruptcy (3rd edit.), p. 349. As to effect of covenant to charge future property : Ex parte Bishop : In re Tonnies (4) ; Ex parte Bolland : In re Clint (5) ; In re Andrews' (1) 12 C. B. (N. S.) 659, 678; per (3) 27 L. It. Ir. 309. Williams, J. (4) L. R. 8 Ch. App. 718. (2) L. R. 15 Eq. 223. (5) L. R. 17 Eq. 115. VOL. XXXI.] CHANCERY DIVISION. 227 Trusts (1) ; Ex parte Todd : In re Ashcroft (2) ; Lyster v. Bankruptcy. Burroughs (3) ; Metcalfe v. Archbishop of York (4); Mornington v. 1892. Keane (5) ; Galavan v. Dunne (6). In re MTEOHAN. MILLER, J. :- This matter has come before me upon charge and discharge, 1893. -and the charge requires me, in substance, to declare that the Jan. 24. bankrupt, who was, previous to and at the time of his marriage, engaged as a trader in carrying on the business of a wine and spirit merchant and general grocer at Killarney, and by a marriage settlement executed upon that occasion so far back as the 25th July, 1883, which reserved to the bankrupt himself (as regarded the facts disclosed in this matter) the full entire and absolute personal control over his whole property and business of every kind which he continued to exercise, under the provision of that settlement, up to the date of the adjudication in this matter, so late as the 10th May, 1892, effectually charged not only the premises in which he had thus carried on his trading business and any chattels thereon at the date of such settlement which were thereby assigned, but also his after acquired property of every kind whatsoever, to which he was in any manner entitled at the date of his adjudication, with the payment of a principal sum of 600 advanced to the bankrupt as the marriage portion of his wife, so far back as that year 1883, notwithstanding the proÂÂvisions of the 52nd section of the Bankruptcy (Ireland) AmendÂÂment Act, 1872, as against the assignees under the adjudication in this matter. That charge was filed on the 6th July, 1892, by the surviving trustee under that marriage settlement of the 25th July, 1883, above referred to (alone), which, after setting forth the title under which the premises in Main-street, Killarney, in which the bankrupt had• carried on his business up to the time of his marriage were held, put forward in very full detail the terms and provisions of the marriage settlement of 1883, as the foundation -of his claim as set forth by it ; and the relief, as sought by that (1) 7 Ch. Div. 635. (4) 1 M. & Cr. 547. (2) 19 Q. B. Div. 186. (5) 2 De G. & J. 292. (3) 1 Dr. & Val. 149. (6) 7 L. R. Ir. 144. 228 LAW REPORTS (IRELAND). [L. R. Bankruptcy. charge which followed is, that the sum of 600 might be declared 1893. well charged on the house and premises, and on the license In re thereof, and on all the stock-in-trade, fixtures, furniture, goods, 14 'CROFIAN. chattels, and effects, and all other the personal property of or Miller, J. belonging to the bankrupt at the time of his bankruptcy, and on debts due and owing to him at said date ; and that charge then went on to apply for directions as therein set forth, which were consequential upon the relief as thus sought. The discharge to that charge was filed by the assignees in this matter, on the 8th July, 1892, and they do not appear to have therein seriously disputed the claim as put forward by the charge in respect of the house and premises in Main-street, Killarney, in which the bankrupt had carried on his business, or to the license attached thereto, or to such fixtures as properly belonged thereto as the bankrupt's fixtures, which have been already very laudably disposed of and realized under a consent order for that purpose, as duly sanctioned by this Court for the benefit of the parties who might thereafter be declared to be entitled thereto; but the assignees by that discharge repudiate altogether the claim as put forward by that charge, so...