Tevlin v Gilseman

• Jurisdiction: Ireland
• Judge: V.-C.
• Judgment Date: 04 June 1901
• Court: Chancery Division (Ireland)
• Docket Number: (1901. No. 110.)
• Date: 04 June 1901

TEVLIN

and

GILSENAN.

(1901. No. 110.)

Chancery Division

Judgment mortgage — Judgment against one of next-of-kin of intestate — Registration as mortgage against interest in intestate's chattels real — Invalidity of — 13 & 14 Vict. c. 29.

Carolan and Scott's CaseIR [1899] 1 I. R. 1.

In re Carolan and Scott's ContractIR [1899] 1 I. R. 1.

Sweeny v. GallagherUNK 221. L. T. R. 82.

Tench v. GlennonDLTR 34 I. L. T. R. 157.

VoL. I.] CHANCERY DIVISION. 429 TEVLIN v. GILSENAN. V.-C. 1901. Judgment mortgage — Judgment against one of next-of-kin of intestate —Registration as mortgage against interest in intestate's chattels real—Invalidity of-13 (5- 14 Vict. c. 29. The right of a next-of-kin to a share of the personal estate of an intestate, consisting in whole or in part of chattel interests in land, is not such an estate or interest in the lands as is capable of being attached by a judgment mortgage under 13 & 14 Vict. c. 29, sects. 6, 7. In re Carolan and Scott's Contract ([1899] 1 I. R. 1) followed, notwithÂstanding Tench v. Glennon (34 I. L. T. R. 157). ORIGIRATING SUMMONS taken out by Ellen Tevlin for the administration of the personal estate of Patrick Gilsenan deceased, the defendants being Nicholas Gilsenan and Michael Gilsenan. The plaintiff's affidavit to ground the application stated :ÂPatrick Gilsenan died on the 3rd July, 1881, intestate, leaving a widow and three brothers, namely, the defendants and another, and one sister, his next-of-kin him surviving. On the 23rd January, 1882, letters of administration were granted to the deÂfendants ; the assets consisted in pert of a chattel interest in a farm of land at Tankardstown, county Meath ; the plaintiff as executrix of one Richard Tevlin on the 12th May, 1899, recovered judgment for £150 against the defendant Nicholas Gilsenan perÂsonally, and on the 20th May, 1899, registered such judgment as a mortgage against the said defendant's interest in said land. Nicholas Gilsenan had been for many years in sole occupation of the said farm, and on the 30th March, 1892, had had a fair rent fixed in respect of same in his own name : the said sum of £150 was due by him in respect of rent and taxes of the said farm paid by Richard Tevlin. 430 THE IRISH REPORTS. [1901. V.-C. W. H. Brown, for the plaintiff : 1901. A mortgagee of the share of a next-of-kin may maintain a P. A. 0' C. White, for the defendant Nicholas Gilsenan. A judgment cannot be registered as a mortgage against the share of a next-of-kin : In re Carolan and Scott's Contract (2). Brown, in reply : The case of Cooper v. Cooper (3) in the House of Lords was not cited in In re Carolan and Scott's Contract (2). If it had been the decision in the latter case would have been different : Tench v. Glennon (4), and the judgment there of Palles, C.B. THE VICE-CHANCELLOR said he would again consider the matter. June 4. THE VICE-CHANCELLOR : This suit has been brought by the plaintiff as judgment mortÂgagee, and as executrix of Richard Tevlin, for the recovery of the sum due on such judgment mortgage claiming to be, as such, an assignee of a distributive share of the personal estate of Patrick Gilsenan. There has been no administration of this personal estate, part of which consists of a farm for some time in the possession of the defendant Nicholas Gilsenan. The defence is that the judgÂment mortgage claimed by the plaintiff did not constitute an assignment of, or a specific charge upon, the farm in question. An important question has been raised, namely, whether a judgment can be effectually registered under the Judgment MortÂgage Act against a portion of the personal estate of a deceased intestate so as to constitute it a specific charge by way of mortÂgage upon such portion of the personal estate. I had this question before me in the case of In re Carolan and Scott's Contract (2) which was a summons under the Vendor and Purchaser Act, 1874, when I was of opinion, and so held, that the right of a...