Re the Estate of Lord Muskerry and Richard Boyle Chinnery

• Jurisdiction: Ireland
• Judgment Date: 16 December 1858
• Date: 16 December 1858
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

In re the Estate of Lord Muskerry and Richard Boyle Chinnery.

Palmer v. Eyre17 Q. B. 366.

Doe d. Baddeley v. Massey17 Q. B. 373.

Kirkwood v. LloydUNK11 Ir. Eq. Rep. 561.3

Doe d. Jones v. WilliamsENR5 Ad. & El. 293.

Wainman v. KynmanENR1 Exch. 118.

Foster v. DawberENR6 Exch. 839.

Wrixon v. Vize3 Dr. & War. 104.

Slater v. LawsonENR1 B. & Ad. 396.

Putnam v. Bates3 Rus. 188.

Toft v. Stephenson1 De G., M'N. & G. 28.

Averall v. WadeUNK3 Ir. Eq. Rep. 446.

Kirkwood v. LloydUNK11 Ir. Eq. Rep. 561.

Roddam v. Morley1 De G. & Jo. 1.

Fordham v. WallisENR10 Hare, 217.

Homan v. AndrewsUNK1 Ir. Ch. Rep. 106.

Sanders v. Meredith3 Man. & Ry. 116.

1858. Ch. Appeal. In re BELLY. Judgment. 94 CHANCERY REPORTS. present case, there is no common liability for a common demand. Each party agreed, on his own behalf, to postpone his own parÂÂticular charge. It has so turned out that, by reason of a deficient fund, there is not sufficient to pay all the charges, and therefore the parties giving priority have lost their respective charges. But where is the common liability for the same demand ? There being no common liability, there is no foundation for any equities among themselves. This case appears to have been the simple case of a number of persons agreeing to postpone their several charges, and nothing else. There was no foundation for a common liability-no person has been called upon to pay anything ; there is therefore no founÂÂdation of a right to enforce contribution. The LORD JUSTICE OF APPEAL. I take exactly the same view. There was here no joint liability to pay the debt, and therefore no obligation to contribute. In re the Estate of LORD MUSKERRY and RICHARD BOYLE CHINNERY. Dec. 16. Where there Two was an appeal from an order for sale of the lands in this is a mortgage over several Case, made by the Commissioners of the Incumbered Estates Court, denominations of land, and on the 14th of July 1858. The facts of the case are sufficiently the mortgagor stated in the following judgment. subsequently sells some of the denominations to a purchaser, for valuable consideration, without the conÂÂcurrence of the mortgagee, and the interest due under the mortgage is regularly paid out of the remaining denominations, the lands sold are not discharged from the mortgage, although no proceedings have been taken against them within twenty years (3 & 4 W. 4, c. 27, and 7 W. 4, and 1 Vic. c. 28). Payment of interest, through a receiver appointed under the Mortgage Act (12 G. 3, c. 10), is a payment within the 7 W. 4, and 1 Vic., c. 28. CHANCERY REPORTS. 95 The CHIEF COMMISSIONER. The petitioner in this matter, being the owner of a mortgage of all the lands mentioned in the petition, has obtained an order for sale of those lands, for the purpose of paying the amount due on foot of the mortgage. The order was made about two years ago; but Richard Boyle Chinnery, the owner of one of the estates included in the mortgage, is a lunatic, and his committee, who himself has an interest in the lands, has been allowed, under the circumstances, to move to discharge the order for sale, so far as regards the lunatic's estate, in the following state of facts. Sir Robert Litton Deane, afterwards Lord Muskerry, being seised in fee of all the lands included in the order for sale, consisting of an estate in Limerick called Gormanstown, an estate in Cork, and an estate in Kerry called Clydaghmore, by deed of mortgage dated the 1st of January 1778, conveyed the entire to Grace Freke, to secure a sum of 8000, late Irish currency, with interest. Grace Kirk, the mortgagee, died in 1782, and, on the 10th of May 1784, her representatives presented a petition under the Mortgage Act, 12 G. 3, c. 10, and obtained an order for the apÂÂpointment of a receiver over all the mortgaged lands ; but it appears that the order was never made available, except as to the lands of Gormanstown and its subdenominations, which constitute the Limerick estate. These lands have been, since the year 1784 to the present time, in the hands of successive receivers appointed in that petition matter, and payments have, from time to time," been made, on foot of the interest of the mortgage, under order of the Court of Equity, during the whole of that long interval and up to the present time, or a very recent period. The rents, however, have fallen so far short of the interest, that the present petitioners claim, besides the entire principal, an arrear of above thirty-seven years' interest. The estate in the county of Limerick still belongs to the repreÂÂsentative of the mortgagors, the present Lord Muskerry ; but Sir Robert Deane, the mortgagor, sold and conveyed the estates in Cork and in Kerry to a person named Broderick Chinnery, the 96 CHANCERY REPORTS. former in the year 1790, the latter, I believe, in 1802. It is a fact not contradicted, that Broderick Chinnery, and those deriving under him, have continued in possession of the Cork and Kerry...