Re The Estate of Richard William Monsell, Owner; ex parte Edward Goldsmid and George Carr Glynn, Petitioners

• Jurisdiction: Ireland
• Judgment Date: 08 May 1857
• Date: 08 May 1857
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

In re the Estate of RICHARD WILLIAM MONSELL,

Owner;

Ex parte EDWARD GOLDSMID and GEORGE CARR GLYNN,

Petitioners.

Healy v. ThatcherENR 8 C. & P. 388.

Cory v. BrettonENR 4 C. & P. 462.

Hoghton v. HoghtonENR 15 Beav. 278.

Jones v. FoxallENR 15 Beav. 396.

Jardine v. SheridanENR 2 C. & K. 24.

Turner v. RailtonENR 2 Esp. 474.

Gregory v. HowardENR 3 Esp. 113.

Froysell v. LewelynENR 9 PRice, 122.

Burchall v. SpoatiswoodeENR 3 C. & K. 302.

Biggs v. WilsonENR 17 Beav. 330.

Harty v. Davis 13 Ir. Law Rep. 23.

Waldridge v. KennisonENR 1 Esp. 143.

Doe d. CurzonENR 6 M. & W. 295.

CHANCERY REPORTS. 245 1857. Ch. Appeal. groat of Tipped in aanarr, In re the Estate of RICHARD WILLIAM MONSELL, Owner; Ex parte EDWARD GOLDSMID and GEORGE CARR GLYNN, Petitioners. May 8. THIS was an appeal against an order made by the Commissioners A correspond. ence, which of the Incumbered Estates Court, on the 28th of February 1857, has been car ried on with a by which they had declared a mortgage of the 13th of July 1811 view to a com- promise, and to have been barred by the Statute of Limitations, under the fol- without pre- Iowing rights to the circumstances :-In 1811, Thomas Monsell, being desirous rights of the to open an account in the banking-house of B. Ball, M. J. Plunkett parties, cannot be given in evi- and P. Doyne, for advance of money, in order to secure the punctual deuce to take a claim out of payment of all such sums of money advanced, executed a mortgage, the operation of the Statute dated the 13th of July 1811, whereby he granted and released to ofLimitations, even though Ball, Plunkett and Doyne, and to their heirs and assigns, the lands there had never been of Carraghduff and Kilkip, in the county Tipperary, and a dwelling any contro versy as to the house and premises in Westmoreland-street, Dublin. This mortgage existence and validity of the was duly registered on the 16th of August 1811. claim. On the 15th of August 1817, Thomas Monsell, for the purpose Statement. of securing the payment of a sum of £15,000 due from him to the Globe Insurance Company, executed a mortgage, whereby he granted and released to four directors of the Globe Insurance ComÂpany, their heirs and assigns, as trustees on behalf of the Company, the lands of Drimeenagh, in the county Tipperary, with the timber thereon, and also the lands of Curraghduff and Kilkip, and the premises in Westmoreland-street, the subject of the mortgage of the 13th of July 1811. A memorial of this mortgage was entered on the 22nd of August 1817, in the office for registration of deeds. By deed of assignment, of the 15th of July 1820, B. Ball, M. J. Plunkett, P. Doyne and H. S. Close assigned the mortgage vox,. 6. 32 246 CHANCERY REPORTS. 1857. of the 13th of July 1811, to the mortgagees of the mortgage of Ch. Appeal. the 15th of August 1817, as trustees for the Globe Insurance In re MONSELL. Company. This deed was duly registered on the 15th of August 1820. Statement In 1832, the petitioners, together with Thomas Coles and Jonathan Birch, then four of the directors and trustees for the Globe Insurance Company, filed their bill in the Court of Chancery against the several persons therein named, setting forth, amongst other things, the above indentures of mortgage, and praying for an account of the amount due thereon respectively, and for a sale. In 1835, John Devaynes Monsell, one of the defendants in said cause, filed his answer, and thereby, amongst other matters, stated that by indenture, of the 25th of June 1793, and made beÂtween said Thomas Monsell (the mortgagor) and Harriett Augusta Monsell, his wife, of the one part, and William Thomas Monsell and John Devaynes, of the other part, after reciting a marriage settlement, bearing date the 4th of May 1791, and executed preÂvious to the marriage of the said Thomas Monsell and Harriet Augusta Monsell, whereby powers were given to said William Thomas Monsell and John Devaynes, the trustees therein named, to invest the money arising from the sale of £5000 East India bonds, the fortune of the said Harriett Augusta Monsell; and after also reciting that said Thomas Monsell was seised in fee-simple in possession to him and his heirs of and in the said lands of Curraghduff and Kilkip : it was witnessed, that, in conÂsideration of £2720 paid by said trustees to said Thomas Monsell, the said Thomas Monsell did convey unto the said William Thomas Monsell and John Devaynes, and to their heirs and assigns, the said lands of Curraghduff and Kilkip, subject to redemption. And said defendant further stated that the said sum of £2720 had not been repaid, but that same, with a large arrear of interest, was then due, and a prior charge on said lands of Curraghduff and Kilkip to any sum that could be claimed as due to the petitioners ; and relied on the facts therein alleged, as constituting notice of said indenture, of the 25th of June 1793, to...