Swift v Kelly

• Jurisdiction: Ireland
• Judgment Date: 25 June 1889
• Docket Number: (1888 — D. No. 750.)
• Date: 25 June 1889
• Court: Court of Appeal (Ireland)

Appeal.

Before LORD ASHBOURNE, C., PALLES, C.B., and FITZ GIBBON, BARRY, and NAISH, L. JJ.

(1888 D. No. 750.)

SWIFT

and

KELLY

Ognel's CaseUNK 4 Rep. 49 b.

Eaton College v. BeauchampENR 1 Ch. Cas. 121.

Boreman v. Yate Ibid. 145.

Duke of Leeds v. PowellENR 1 Ves. Sen. 171.

Hopwood v. WhaleyENR 6 C. B. 744.

Cooke v. Wiggins 10 Ves. 190.

Ruckley v. KiernanUNK 7 Ir. C. L. R. 75, 80,

Davy v. DavyENR 1 Ch. Cas. 144.

Thorndike v. AllingtonENR 1 Ch. Cas. 79.

Randal v. RigbyENR 4 M. & W. 130.

Crawford v. AnnalyUNK 23 L. R. Ir. 113.

Varley v. LeightENR 2 Exch. 446.

Wilson v. The Middle Temple, & c. Hard. Rep. 332.

Thomas v. SylvesterELR L. R. 8 Q. B. 368.

Action of debt Rentcharge under Statute of Uses, and secured by term of years 3 & 4 Wm. 3, c. 27, s. 36 Liability of terre-tenant in possession.

478 LAW REPORTS (IRELAND) [L. LL S Wl.V1! v. BELLY (1). (1888-D. No. 750.) Action of debt-Rentcharge under Statute of Uses, and secured by tern of years-3 t5,- 4 Wm. 3, c. 27, 8. 36-Liability of terre-tenant in possession. Where a statement of claim alleged that an owner in fee had granted lands, by indenture of marriage settlement, to a trustee, to the use inter alia that A (in ease she should survive the settlor) should and might, from time to time after his decease, take, receive, and enjoy to her own use and benefit, an annual sum or yearly rentcharge of 150, by way of jointure during her life, to be issuing and payable out of the said lands, and that, subject to the said rentcharge, the lands were limited to the use of trustees for a term of 100 years ; and subject thereto, to the use of the grantor in fee ; and that it was declared by the indenture that the term of years was vested in the trustees, upon trust, when and so often as the jointure should be in arrear, by mortgage or sale of the lands, to raise and. pay the arrears and costs ; that the grantor of the rentcharge died, and that the defendant went into possession, under his will, of the lands, and the rents and profits thereof ; and that certain arrears of the said rentcharge had accrued due to the grantee in her lifetime, whose executrix the plaintiff was : Held, on demurrer, reversing the judgment of the Queen's Bench Division, that the existence of the term was a bar to the absolute and unlimited personal liability of the defendant to pay the arrears, irrespective of the amount received or receivable by him from the lands, and that the action was not maintainable at law. Semble, per Palles, C.B., that the allegation in the pleadings, that the defendant had received rents and profits, might be sufficient to found a decree against him for an account. APPEAL by the defendant from the judgment of the Queen's Bench Division. See the report of the case in the Court below-24 L. R. Ir. 107 -where the facts and arguments are stated. It was further argued on behalf of the defendant, on the VOL. XXIV.] Q. B. & EX. DIVISIONS. 479 hearing of the appeal, that the personal action at law did not lie Appeal. owing to the limitation of the term to the trustees. 1889. SwIFr V. The Right Hon. S. Walker, Q.C., and Oulion, for the appellant. KELLY. Serjeant Jellett, Q.C., Bewley, Q.C., and C. O'Connor, for the respondent. The following authorities, not mentioned in the Court below, were cited :-Ognel's Case (1) ; Eaton College v. Beauchamp (2) ; Boreman v. Pate (3) ; Duke of Leeds v. Powell (4) ; Hopwood v. Whaley (5) ; Cooke v. Wiggins (6) ; Buckley v. Kiernan (7) ; Davy v. Davy (8) ; Thorndike v. Allington (9) ; Randal v. Rigby (10) ; Crawford v. Annaly (11) ; Parley v. Leigh (12) ; Wilson v. The Middle Temple, 4e. (13) ; Coke upon Littleton, sects. 217, 218, 220, 233 ; Roscoe on Real Actions, pp. 63, 64, 332 ; Lumney on Annuities, p. 389 ; Starkie on Evidence, Vol. II. p. 369 ; Buller's Nisi Prins, p. 170 ; Bacon's Abridgement (Ed. 1832), Tit. Debt. C., note e ; Williams on Executors (Ed. 1879), p. 1729 (14). Cur. adv. cult. LORD ASHBOURNE, C. :- This is an appeal from a judgment of the Queen's Bench June 25. Division, allowing a demurrer taken by the plaintiff, and the facts are fully and sufficiently stated in the judgment of the Court below. I may say, shortly, that I concur in the general result at which the learned Judges in the Court below arrived, save on one point, which, although started and referred to, was really not argued before them. I am satisfied to treat as settled that (1) 4 Rep. 49 b. (2) 1 Ch. Cu. 121. (3) Ibid. 145. (4) 1 Yes. Sen. 171. (5) 6 C. B. 744. (6) 10 Yes. 190. (7) 7 Ir. C. L. R. 75, 80. (8) 1 Ch. Cas. 144. (9) 1 Ch. Cu. 79. VOL. XXIV. (4) 4 H. & W. 130. (5) 23 L. R. Ir. 113. (6) 2 Exch. 446. (7) Hard. Rep. 332. (8) Compare In re Blackburn and District Benefit Building Society; Ex parte Graham (W. N., 1889, p. 120). -REP. 20 480 LAW REPORTS (IRELAND). [L. I. Appeal. where an owner of fee-simple land is in possession, and the land is 1889. charged with a rentcharge, the arrear can be recovered from the Elwin owner by a personal action ; and this case has been discussed on KELLY. the question of the liability of the defendant in a personal action. But in the present case there is a term of 100 years, the trusts of which were, so often as the jointure in question should be in arrear, by sale or mortgage to raise and pay such arrears and all costs attending the execution of the trusts of the term. What is the effect of this term, having regard to the fact that the liability of the owner to be sued at law is based upon the ground of his pernancy of the profits ? What was the position of the parties at law ? After the death of the husband the lands. stood limited to the use that the wife might receive the jointure of 150, with power of distress for arrears ; subject thereto, to the use of the trustees for the aforesaid term of 100 years, with remainder to the settlor in fee. What, then, was the position of the parties at law when the husband died ? The term was not created by demise, but is executed under the Statute of Uses, and therefore the possession and legal estate were at once annexed without entry. Trusts not being cognizable at law cannot be-considered in the matter. The ground of liability is pernancy of profits. A reversioner not in possession or entitled to possession could not, of course, be held liable. Here, however, the reversioner is in possession, but what is the nature of his possession ? He may be in possession as bailiff, or tenant at will, but his perÂÂnancy cannot, at law-having regard to the term-be ascribed. to his freehold interest. He would be powerless at law to obtain possession ; he could not resist the mandate of the trustees of the term to quit possession, certainly with the annuity unpaid. If, then, at law he had no right to the possession or pernancy of the profits, why-the obstacle of the term standing clearly in the way-should we charge him 9 As I have said, I concur with the principle on which the judgment of the Court below proceeded; but, having had the advantage of having the effect of the term argued, I am of opinion that it interposes a legal barrier in this case to the claim of the plaintiff. We have got the settlement of the 8th February, 1859, before us, referred to in the pleadings ; we are entitled and bound to VOL. XXIV.] Q. B. & DIVISIONS. 481 notice the existence of the term, and to give to it the legal signifi- Appeal. canoe we...