Re The Estate of John Eakins Browne, Appellant; Theobald Billing, Respondent

• Jurisdiction: Ireland
• Judgment Date: 15 May 1862
• Date: 15 May 1862
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

In re the Estate of JOHN EAKINS BROWNE,

Appellant;

THEOBALD BILLING,

Respondent.

Dilkes v. Broadmead 29 Law Jour., N. S., Chan., 310; and (on appeal) 30 Law Jour., N. S., Chan., 268; S. C., 6 Jur., N. S., 289; and (on appeal) 7 Jur., N. S., 56.

Spackman v. TimbrellENR 8 Sim. 253.

Fitzgerald v. Fauconberge Fitzgib. 207, 212.

Richards v. LewisENR 8 C. B. 1035.

Douglasse v. Ward 1 Cas. in Chan. 99.

Colombine v. Penhall 1 Sm. & Gif. 228.

Beere v. HeadUNK 9 Ir. Eq. Rep. 76.

Pulvertoft v. Pulvertoft 18 Ves. 92.

Heap v. TongeENR 9 Hare, 90.

Nairn v. Prowse 6 Ves. 751.

Dickenson v. WrightENR 5 H. & N. 401.

Clarke v. WrigthENR 6 H. & N. 849; S. C., 30 Law Jour., N. S., Exch., 113.

Massy v. TraversIR 10 Ir. Com. Law Rep. 459.

Barham v. The Earl of clarendonENR 10 Hare, 126.

Beere v. Head 3 J. & L. 340.

Nairn v. Prowse 6 Ves. 751.

Dilkes v. Broadmead 29 Law Jour., Chan. 310.

Simpson v. JonesENR 2 Russ. & M. 365.

Clarke v. WrightENR 6 H. & N. 849.

Kekewicke v. ManningENR 1 De G., M. & G. 176.

Pimm v. Insall 1 Hall. & Tw. 491.

Spackman v. TimbrellENR 8 Sim. 253.

Richardson v. HortonENR 7 Beav. 112.

Higginbotham v. Hulme 19 Ves. 88.

Ex parte Cooke 8 Ves. 353.

Phipps v. Lord EnnismoreENR 4 Russ. 131.

Clarke v. WrightENR 6 H. & N. 876.

Nairn v. Prowse 6 Ves. 752.

Turton v. Benson 1 P. W. 495.

Thompson v. HarrisonENR 1 Cox, 345.

The Earl of ClarendonENR 10 Hare, 126.

Houston v. BarryUNK 5 Ir. Eq. Rep. 294.

Heap v. TongeENR 9 Hare, 90.

CHANCERY REPORTS. 283 1862. Oh. Appeal. Court of Snatai in ebtinterg. In re the Estate of JOHN 'EAKINS BROWNE, Appellant; THEOBALD BILLING, Respondent.* Tnis was an appeal from an order made by Judge Dobbs, in the Landed Estates Court, on the 4th December 1861. In 1789, George Browne sen., owner of certain estates in the county Mayo, and George Browne jun., executed a bond and warÂÂrant of attorney to John Lynch, in the penal sum of 1200, to secure the principal sum of 600, with interest. Judgment was entered upon that bond, in the Court of Common Pleas, as of Michaelmas Term 1789. That judgment was revived several times, the last revival being in May 1844. It was redocketted in October 1844 ; and on the 12th July 1860, it was duly registered, pursuant to the 7 & 8 Vic., c. 90. In 1836, the estates of George Browne sen. became vested in John Joseph Browne, a minor and ward of the Court of Chancery ; and by articles executed on the 15th of November 1836, pursuant to an order made by the LORD CHANCELLOR, upon the marriage of John Joseph Browne with Miss Eakins, it was provided that, as soon as J. J. Browne should attain his age of twenty-one years, the estates should be settled and assured free from all incumbrances, except such as then affected them, to the use of John Joseph Browne and his assigns for life ; remainder to his first and other sons in tail. of the settlement, a charge on the lands, was still a subsisting charge upon the husband's life estate, notwithstanding that the said judgment had not been regisÂÂtered pursuant to the 7 & 8 Vic., c. 90, within the time (viz., five years) required by the 13 & 14 Vic., c. 29, s. 3, for keeping it in force against purchasers under the settlement. • Before the LORD CHANCELLOR, the LORD JUSTICE OF APPEAL, and Mr. Justice CHRISTIAN. 284 CHANCERY REPORTS. By deed of 20th November 1839, J. J. Browne, having attained his majority, confirmed the articles of 1836. George Eakins Browne (the present owner) was the eldest son of that marriage, and, upon the death of his father, became the first tenant in tail, he being then a minor. He attained his full age in 1858, and thereupon executed a disentailing deed ; and, upon the 11th November 1858, he executed his marriage settlement, by which the estates now ordered to be sold were settled to the use of George Eakins Browne for life ; remainder for the purpose of proÂÂviding a jointure of 400 a-year for his intended wife, in case she should survive him ; remainder to the sons of the marriage in tail male : George E. Browne covenanting with the trustees that they should hold the estates, so settled, discharged from all the incumÂÂbrances created by him or his ancestors. The fortune of his intended wife was not put in settlement. Interest on the judgment of 1789 was regularly paid by the successive owners of the estates, and, during George E. Browne's minority, by a receiver, who was discharged upon George E. Browne's attaining his majority, from which time, up to 1859, the interest was paid by George E. Browne personally. In 1860, George E. Browne refused to pay any more interest, on the ground that, by the settlement of 1858, he had altered his position, and, instead of being subject to the judgment, the lands were discharged of it, by the conjoint effect of the settlement of 1858 and the 13 & 14 Vie., e. 29. On the 13th June 1861, the judgment of 1789 became vested in the respondent Billing, who, on the 18th of the same month, filed a petition in the Landed Estates Court, for a sale of the life estate of George Eakins Browne, in the lands comprised in his marriage settlement in 1858, they being part of the lands of which George Browne sen. (the original conuzor) had been seised ; and on the 4th December 1861, an absolute order for such sale was accordingly made. From that order, George Eakins Browne the owner now appealed, upon the ground that he was, under his own marriage settlement of the 11th of November 1858, a purchaser for valuable consideration CHANCERY REPORTS. 285 of his own life estate in the lands therein put in settlement ; and that, consequently, the said life estate was not affected by the judgment of 1789, that judgment not having been re-registered, pursuant to the 13 & 14 Vic., c. 29, within five years preceding the date of the settlement. On the part of the respondent the contenÂÂtion was, that George Eakins Browne could not be considered a purchaser for valuable consideration of the life estate in the lands limited to him by the settlement of 1858.* 1862. Ch. Appeal. In re BROWNE'S ESTATE. Statement. Mr. Brewster, for the respondent. The husband cannot be considered a purchaser for valuable Argument. consideration of the life estate, within the meaning of the 13 and 14 Vic., c. 29, s. 4. No doubt, the estates limited by the settleÂÂment to the use of the wife and children are within the protection of the statute. A person getting land, for money or other valuable consideration, such as marriage, cannot be affected by judgments which he had no means of ascertaining ; but a debtor cannot, by executing a settlement in contemplation of marriage, and thereby converting his estate in fee into an estate for life, thus defeat his creditor. The Legislature never could have intended that such a question should be decided by the form of the conveyance, and not by the bona fides of the purchase. The husband had, after the execution of the settlement, a right to sell his life estate, to the prejudice of everyone taking under the settlement. He was in the same position as if he had conveyed these lands to trustees, to hold after his death upon trust to provide a jointure for his widow, and subject thereto to his children. If he had mortgaged in fee, no doubt the mortgagee would be protected, but the equity of redempÂÂtion would not be affected. The mortgagee would not get the equity of redemption, neither do the wife and children get the This-case was argued on the 28th April 1862, before the LORD CHANCELÂÂLOR and the LORD JUSTICE or APPEAL. On the 30th April, the LORD CHANCELLOR said that the Court wished to have the assistance of a Common Law Judge in deciding the case ; and accordingly directed it to be re-argued by one Counsel on each side. 286 CHANCERY REPORTS. 1862. husband's life estate. In Dines v. Broadmead (a), which will be Ch. Appeal. relied, on for the appellant, the conveyance contained every element In re BROWNE'S of a conveyance for valuable consideration ; it was a contract by ESTATE. the wife, to get that which, if there had not been a settlement, the Argument. law would, immediately after the marriage, have given to the husÂÂband. In Spackman v. Timbrell (b), the Vice-Chancellor, in his judgment, said (p. 259) :-" And it is impossible to say that a conveyance, in consideration of marriage, for the benefit of the wife and children of the settlor, does not 'make them purchasers for valuable consideration of all the interest conveyed to them. But, by the conveyance, the heir becomes personally liable to the creditors of his ancestor for the value of the assets which he has conveyed." A husband is not a purchaser of his wife's fortune. The jus mariti is given by the law : Fitzgerald v. Fauconberge (c). In Richards v. Lewis (d), Jervis, C. J., in his judgment, said (p. 1057) :-" It seems to have been decided in Douglasse v. Ward (e) that an antenuptial settlement avoids a former volunÂÂtary deed. But there is no case which establishes that the husÂÂband, acquiring an estate merely by marriage, takes as a purchaser, within the meaning of the statute (f). He also cited Colombine v. Penhall (g). Serjeant Sullivan, for the appellant. The contention is, not that George Eakins Browne was a purÂÂchaser for valuable consideration of his own life estate, but that it was purchased by others for value, which protects it from the judgÂÂment. Notice of an unredocketted judgment is immaterial. A man, with notice of an unredocketted judgment, may become a purchaser for value, and the judgment is void against him : Beere v. Head (h). The wife's friends were no parties to anything (a) 29 Law Jour., N. S., Chan., 310 ; and (on appeal) 30 Law Jour., N. S., Chan., 268; S. C., 6 Jur., N. S., 289; and (on appeal) 7 Jur., N. S., 56. (b) 8 Sim. 253. (c) Fitzgib. 207, 212. (d) 8 C. B. 1035. (e) 1 Cas. in Chan. 99. (f) 27 Eliz., c. 4. (g) 1 Sm. & Gif. 228. (h) 9 Ir. Eq. Rep. 76. CHANCERY REPORTS. 287 recognising the judgment, but dealt with the...