Re Stevenson's Estate

• Jurisdiction: Ireland
• Judgment Date: 29 November 1901
• Date: 29 November 1901
• Court: Court of Appeal (Ireland)

IN RE STEVENSON'S ESTATE

Appeal

— Equitable mortgage — Deposit of little-dees unaccompanied by writing — Subsequent registered conveyance for value — Antecedent letters leading up to the deposit — Priority —

Agra Bank v. BarryELR L. R. 7 H. L. 135, 155.

Agra Bank v. BarryELR L. R. 7 H. L. 135.

Agra Bank's v. Barry, Agra Bank CaseELR L. R. 7 H. L. 135.

Burke's EstateUNKUNK 7 L. R. Ir. 57; 9 L. R. Ir. 24.

Burke's EstateUNK 9 L. R. Ir. 24.

Calcott and Elvin's ContractELR [1898] 2 Ch. 460.

Cleary v, FitzGeraldUNK 7 L. R. Ir. 229.

Copland v. DaviesELR L. R. 5 H. L. 358.

Copland v. DaviesELR L. R. 5 H. L. 366, 383.

Credland v. PotterELR L. R. 10 Ch. 8.

Ex Parte Jones 4 L. J., Bankey., 59.

Hamilton , Re Hamilton 9 Ir. Ch. R. 512.

Hamilton's Estate, Hamilton's Case 9 Ir. Ch. R. 512.

In re Ffrench's EstateUNK 21 L. R. Ir. 283.

In re Hamilton, Hamilton's Case 9 Ir. Ch. R. 512.

In re Hamilton 9 Ir. Ch. R. 512.

In re Roche's EstateUNK 25 L. R. Ir. 284.

Lambert's EstateUNK 13 L. R. Ir. 234.

Nave v. PennellENR 2 H. & M. 170.

Re Hamilton, In re Hamilton 9 Ir. Ch. R. 512.

Re Stewart Referred to in Burn v. Burn, 3 Ves. 576.

Reilly v. Garnett I. R. 7 Eq. 1.

Rodger v. HarrisonELR [1893] 1 Q. B. 161, 170.

Rodger v. HarrisonELR [1893] 1 Q. B. 161.

Sloane's EstateIR [1895] 1 I. R. 146, 168.

The Agra Bank Limited v. BarryELR I. R. 6 Eq. 128; L. R. 7 H. L. 135.

The Agra Bank v. BarryELR I. R. 6 Eq. 128; L. R. 7 H. L. 135.

Union Bank of London v. KentELR 39 Ch. D. at p. 248.

Vet. I.] CHANCERY DIVISION. 23 IN RE STEVENSON'S ESTATE (1). Appeal. 1901. Registry Acts—Equitable mortgage—Deposit of title-deeds unaccompanied by Oct. 29-31. writing—Subsequent registered conveyance for value—Antecedent letters NW. 29. leading up to the deposit—Priority—Registry Act, 6 Anne (Ir.), c. 2. S., who kept his bank account in the Londonderry branch of the Provincial Bank, in the beginning of 1895, was being pressed by the bank manager to give some further security, or to reduce his overdraft. At the time S. was negotiating for the purchase of the P. estate in. the county of Westmeath. Several letters were written by S. to the bank manager, in some of which S. stated that as soon as he got the conveyance of the P. estate he would deposit it with the bank. The sale of the P. estate was concluded for £8000, and it was agreed that the entire purchase-money was to be left outstanding on mortÂgage. The conveyance to S. was executed on the 11th July, 1895, and the mortgage by S. to the vendor T. was executed on the same day. On the 13th July, the town. agent of the solicitor for S. deposited the conveyance with the Provincial Bank at their office in Dublin. There was not any memorandum in writing at the date of the deposit, and the deed was sent down to the Londonderry branch of the bank from the Dublin office the same day. In July, 1896, S. executed a deed of mortgage of the P. estate to F. and S. to secure the repayment of £4500, and on being asked by F. and S. for the conveyance to himself, S. stated that it was in the custody of T., the prior mortgagee. The mortgage to F. and S. was duly registered :— Held (by Fitz Gibbon and Holmes, L.JJ. ; dissentiente, Walker, L.J. ; reÂversing the decision of Meredith, J.), that the letters from S. to the bank did not amount to an agreement to create a charge, and did not require to be registered in order to preserve the priority of the bank over the mortgage to F. and S. APPEAL from the decision of Meredith, J., of the 29th July, 1901, by which he allowed an objection by Robert Joseph Stevenson and James Watts Fullerton, mortgagees of the Port lemon estate, by deed dated the 29th July, 1896, to the claim of the Provincial Bank of Ireland. The bank were returned on the schedule of incumbrances as No. 8 in priority to these two mortÂgagees by virtue of an equitable mortgage created by deposit of a (1) Before FITZ GIBBON, WALKER, and HOLMES, L.JJ. D2 24 THE IRISH REPORTS. [1902. Appeal. certain title-deed by or on behalf of the owner on the 15th July, 1901. 1895. According to the case of the bank there was not any In re 7 memorandum in writing accompanying the deposit, and so no $TEVENSON S ESTATE, record of the bank's mortgage appeared on the Registry of Deeds, there being nothing to register. There had been some letters written by Colonel Stevenson to D. B. Stuart, the manager of the branch of the Provincial Bank of Ireland at Londonderry, prior to the deposit of the title-deed; and the trustees claimed priority over the bank on the ground that these letters amounted to an agreeÂment for a mortgage which was capable of registration. Under the trusts of the settlement executed on his marriage, and dated the 17th September, 1878, and in the events which had happened, Colonel Stevenson was tenant for life of the funds comÂprised in the settlement, and also of certain other funds bequeathed to the trustees by the will of his father-in-law, William Black. He had borrowed from these trustees, Robert Joseph Stevenson and James Watt Fullerton, a sum of £3500 secured by mortgage, dated the 17th January, 1896, of his life estate in the funds comÂprised in the settlement, with policies of insurance on his life as collateral security. In March, 1896, Colonel Stevenson proposed to the trustees that they should advance to him a further sum of £4500, which they agreed to do on getting further security in addition to the life interest in the trust funds. He proposed to include in the mortgage his Portlemon estate in the county of Westmeath, subject to a mortgage to Mrs. Treacy, which was returned as No. 7 on the schedule of ineumbrances. Colonel Stevenson had purchased the Portlemon estate from Mrs. Treacy in 1895 for £8000, and the purchase-money was left outstanding on mortgage at £4 per cent. The conveyance to Colonel StevenÂson was executed on the 11th July, 1895, and on the same day Colonel Stevenson executed the mortgage for the entire purchase-money to Mrs. Treacy. During the negotiations for this loan the trustees had asked Colonel Stevenson for the title-deeds to the Port-lemon estate, and were informed by him that the deeds were in Dublin in the possession of the solicitors for Mrs. Treacy, the prior mortgagee. Colonel Stevenson kept his account at the Londonderry branch of the Provincial Bank of Ireland, and at the commencement of VOL. I.] CHANCERY DIVISION. 25 "I enclose Quin's bill corrected, as advised. Please discount and credit to our account. I am sending our pass-book that it may be posted up. I hope to let you have a further lodgment of £400 or £500 in a few days' time, and when I receive the title-deeds of the Portlemon property from my solicitors I will have same at once lodged with you." On the 18th May, 1895, Colonel Stevenson wrote "I have your letter of the 16th inst. So far, sale has not been made of the shares in Mitchell & Co.'s, Belfast, I spoke to you of. I have instructed my broker to realise same as early as possible, and I am pushing my solicitor, and Mr. Wilson, the Dublin solicitor, who has to make title, to complete the deed of the Portlemon estate as quickly as possible. The conveyance to me has been approved of by Mr. D'Alton, who is now making the necessary searches, and I hope will soon be comÂpleted for lodgment with you. When I return to Knockbrack on Wednesday next I will look out some additional security, which I will hand you to hold until all is completed to the satisfaction of your directors. I should be very sorry that you would be in any way blamed over my account, and I assure you that all you require is a little patience, and my account will be put on a satisfactory basis." On the 24th May, 1895, Colonel Stevenson wrote " Please place the enclosed £250 to the credit of our account, and hold the enclosed securities with those already in your possession. My solicitor says it will take a month yet to complete searches and perfect deed of Portlemon estate. I am sorry at the delay, and I am doing all in my power to have deed ready for lodgment with you as undertaken. " Securities enclosed—Life Policy, own life, for £1000; Judgment Search on Stewart Estate held by me, £600 ; Conveyance Rockbull Cottage, £180." On the 6th June, 1895, a mortgage was sent to Colonel Stevenson by Stuart, and on the 7th June Colonel Stevenson wrote "I have the mortgage sent me for signature, received by me last night. I have read it carefully, but I cannot see my way to sign it. Your solicitor has evidently made a mistake, and supposes my mother, 26 THE IRISH REPORTS. [1902. Appeal. Mrs. Barbara Stevenson, to be my wife. I do not desire to give a 1901. mortgage, nor do I see any necessity for same. An authority to hold In re such securities as are deposited with you as collateral security for our ST-Evmson's overdraft until same be discharged, should meet the case. If, however, ESTATE. in addition to holding the title-deeds of the Portlemon estate, which I hope soon to deposit with you, I can and will give you such form of mortgage as you desire against that property, and the insurance policies on life of Ed. de Blaquire you hold. I hope to make you a considerable lodgment shortly, as there is money now coming to me from Mr. Black's estate, and I have asked the executors to let me have my dividend for past year out of that property as soon as possible." On the 11th July, 1895, the conveyance of the Portlemon estate was executed, and on the 15th July, Mr. Lett, the agent in Dublin of Colonel Stevenson's solicitors, deposited the deed with Mr. Tweedy, the solicitor for the Provincial Bank of Ireland in Dublin, for the purpose of giving the bank an equitable mortgage. There was not any memorandum in writing, or other document accompanying the deposit, nor were either Mr. Lett or Mr. Tweedy aware of the correspondence which had passed between Colonel Stevenson and Stuart, although they did know that there were negotiations for...