Shea v Moore

• Jurisdiction: Ireland
• Judgment Date: 01 January 1894
• Date: 01 January 1894
• Docket Number: (1891. No. 13,211.)
• Court: King's Bench Division (Ireland)

Shea

and

Moore (1).

Appeal.

(1891. No. 13,211.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREPROM IN

THE COURT OF APPEAL.

1894.

Judgment — Effect of under Pigot's Act — Charge on land — Right to foreclosure — Equitable mortgage — Statute of Limitations — Trustee in possession.

W. H. M. being entitled to three houses in the county of Dublin, held under a lease for lives renewable for ever, by a settlement dated the 28th June, 1837, executed on his marriage with E. K., conveyed the premises to F. W. M. and F. B K., upon trust for W. H. M. for life, or until bankruptcy or failure of credit, with remainder to E. K. for life; and after the death of the survivor upon trust in default of issue (which event happened) to reconvey the premises to W. H. M., his heirs, and assigns. W. H. M., on the 31st May, 1831, gave a bond to F. W. M. for the sum of £1000, conditioned for payment of £500, with interest at 5 per cent., on which judgment was entered in Trinity Term, 1841, and by an award of the 11th December, 1841, made on a submission to arbitration between F. W. M. and W. H. M., it was declared that the judgment should stand as security for £279 15s. By an order of the Lord Chancellor, dated the 22nd February, 1842, in a cause petition of M. v. M., it was ordered that W.H. M. should pay to F.W. M. the sum of £600, with interest at 6 per cent., and this order was duly registered as a judgment under 3 & 4 Vict. c. 105, s. 28. By a settlement of 30th July, 1851, and an indenture of even date, made on the marriage of F. W. M. with G. K., these judgments and the sums secured by them were assigned to L. B. and R. H. C. upon trust to raise the amounts and stand possessed thereof in trust for F.W. M. for life, and after his decease in trust for his wife for life, and, subject thereto, in trust for the children of the marriage.

W. H. M. became embarrassed shortly after his marriage, and his wife entered into possession of the income of the trust property. W. H. M. died on the 6th September, 1861; and Mrs. M. survived until the 29th September, 1877. From 1874 the defendant F. W. M. was in actual receipt of the rents for her, and after her death, thinking that he was bona fide entitled to the property as heir-at-law of W. H. M., he retained the rents himself. In 1891, the defendant F. W. M. discovered that he was not entitled to the property, and that the title was in the plaintiffs; but he claimed the right to retain the rents for the purpose of satisfying the sums due under the judgments, and 50 years' interest as a credit against the rents:—

Held (reversing the decision of the Master of the Rolls), that there was no right in F. W. M., under the judgments, to recover the lands in a foreclosure

action; that any claim which F. W. M. had under the judgments was barred by the Statute of Limitations, and that the plaintiffs could compel a re-conveyance without paying off the amount due on the judgments.

By indenture of lease, dated the 30th May, 1836, William Jenkins and John Egan granted to Thomas Arkins, his heirs and assigns, a plot of ground situate on Glasnevin-road, in the county of Dublin, for three lives, with a covenant for perpetual renewal, subject to a rent of £14 a-year.

By conveyance, dated the 28th June, 1836, Thomas Arkins conveyed to William Henry Moore the lessee's interest in the aforesaid lease.

By indenture of marriage settlement, bearing date the 28th June, 1837, made between William Henry Moore, of the first part, George Marshall Knipe and Elizabeth Knipe, of the second part, and Francis Wellington Moore and Francis Blake Knox, of the third part, William Henry Moore conveyed the lessee's interest in the premises to Francis Wellington Moore and Francis Blake Knox, their heirs and assigns, in trust for the said William Henry Moore for life or until bankruptcy, and after his death or bankruptcy, in trust to pay the rents and profits of the premises to Elizabeth Knipe for life, and after the death of the survivor upon the trusts therein contained for the issue of the said marriage, and in default of such issue upon trust to reconvey the premises to the said William Henry Moore, his heirs and assigns.

There was no issue of the marriage, and William Henry Moore became embarrassed in his circumstances, and left the country to avoid his creditors. He died on the 6th September, 1861. On the death of William Henry Moore, Elizabeth Moore, otherwise Knipe, entered into possession of the property, and receipt of the rents and profits, and continued in such possession down to 1874. Subsequently to 1861 she married a Mr. King. Francis Blake Knox died, and no new trustee was appointed in his place. In 1874, the defendant, Francis Wellington Moore, as surviving trustee of the settlement, entered into possession of the premises and receipt of the rents and profits, and he applied the said rents and profits in accordance with the trusts of the said settlement until the year 1877, when the said Elizabeth Moore died. She died on the 29th September, 1877. The plaintiffs, William F. L. Shea, Emily Moore, Elizabeth Moore, and Isabella Moore, were the co-heirs of William Henry Moore, who died intestate and without issue, and they brought the action for the purpose of carrying the trusts of the settlement of 1837 into execution. The plaintiffs did not become aware of their rights under the marriage settlement until the month of February, 1891.

The lease of the 30th May, 1836, had been converted into a fee-farm grant pursuant to the Renewable Leasehold Conversion Act.

The defendant, by his defence, pleaded that he had retained possession of the lands, believing bona fide that he was the heir-at-law of the said William Henry Moore, and it was not until February, 1891, when he obtained advice on the title, with the intention of selling the property, that he discovered that he was not heir-at-law of the said William Henry Moore, and that the plaintiffs were. The defendant then informed the plaintiffs of the fact, and offered to convey the premises to the plaintiffs, on having certain incumbrances discharged, which were due to the defendant. The particulars of these were as follows:—

1. A debt secured by a judgment in Trinity Term, 1841. Wm. Henry Moore executed a bond to the defendant, F. W. Moore, in the penal sum of £1000, conditioned to be void on the payment of £500, with interest at 5 per cent., and in Trinity Term, 1841, the defendant obtained a judgment upon said bond against William Henry Moore for the penal sum of £1000, and £2 1s. 11d. costs. This judgment was duly registered under the 3 & 4 Vict. c. 105, sect. 28, so as to affect the estate of the said William Henry Moore in the premises.

2. By an order of the Lord Chancellor of Ireland, dated the 22nd February, 1842, made in a cause petition matter, in which the defendant Francis Wellington Moore was petitioner, and the said William H. Moore was respondent, concerning a certain award therein mentioned, dated the 11th December, 1841, it was ordered among other things that the said William H. Moore should pay to the said Francis Wellington Moore the sum of £600, with interest thereon at the rate of 6 per cent. The said order was duly registered so as to affect the estate of the said William H. Moore in the premises, under the provisions of the statute 3 & 4 Vict. c. 105, sect. 28. These judgments were duly re-registered from time to time.

By an award, dated the 11th Dec., 1841, reciting a certain deed of submission between the said Francis W. Moore and William H. Moore, which, by order made in the said matter on 12th Feb., 1840, had been made a rule of the Court of Chancery in Ireland, it was amongst other things found that the said judgment for the penal sum of £1000 conditioned for the payment of £500, with interest, should stand as a security for the payment of the principal sum of £279 15s.

By a settlement, dated the 30th July, 1851, and made between the said F. W. Moore of the first part, the Rev. Thomas Kilby and Georgiana Kilby of the second part, and the Rev. Louis George Brown and the Rev. Robert H. Cox of the third part, executed on the marriage of the defendant and Miss Kilby, reciting the said bond and judgment, and award, and the order in Chancery, and reciting that there then remained due on foot of the said judgment the principal sum of £279 15s., together with the sum of £135 3s. 3d. arrears of interest, and the sum of £2 1s. 11d. costs, making together the sum of £417 0s. 2d., and that the principal sum of £445 17s. (part of the said Bum of £600), together with the sum of £262 5s. 11d. for arrears of interest, making together the sum of £708 2s. 11d. remained due under the order of the 22nd February, 1842, and reciting that the said William H. Moore was possessed of an estate of inheritance in the said lands, and that the principal moneys and interest had been assigned by deed of even date to Louis Brown and Robert H. Cox upon the trusts of the said indenture, it was witnessed that the trustees should stand possessed of these moneys, on trust for Francis Wellington Moore for life, and after his death for Georgiana Blanche Moore for life, with remainder to the children of the marriage.

The defendant had received out of the property since the death of Mrs. King £1402 13s. 10d., and he claimed that there was due to him for interest, on foot of the judgment and the Chancery order, from the 30th July, 1851, to July, 1891, £1033 14s., and there was due to the trustees of his marriage settlement £279 15s. principal, and £135 3s. 3d. interest, up to the 30th July, 1851, and £2 1s. 11d. for costs on foot of the judgment of Trinity Term, 1841, and £445 17s. principal, and £262 5s. 11d. — interest, under the Chancery order of the 30th July, 1851, said sums making together £1125 3s. 1d. The defendant claimed to retain the sum of £1402 13s. 10d. as a...