The Estate of Anthony Coffey, Patrick Dockeray, and John Eldwood, or Some or One of Them, Owners; Patrick Beirne, Petitioner

• Jurisdiction: Ireland
• Judgment Date: 08 May 1869
• Date: 08 May 1869
• Court: Incumbered Estates Court (Ireland)

L. E. Court.

IN THE MATTER OF THE ESTATE OF ANTHONY COFFEY, PATRICK DOCKERAY, AND JOHN ELDWOOD, OR SOME OR ONE OF THEM,

OWNERS;

PATRICK BEIRNE,

PETITIONER.

In re Estate's Estate 13 Ir. Ch. R. 453.

Butller v. SmithUNK 16 Ir. C. L. R. 213.

Penny v.Gardner Alc. & Nap. 345.

Troy v. Kirk Alc. & Nap. 326.

Davis v. DavisUNK 4 Ir. L. R. 353.

Barrett v. DukeENR 8 T. R. 602.

Shaw v. CoffinENR 14 C. B. N. S. 372.

Jurisdicton of the Landed Estates of Court in the case of a legal but equitably avoidable title, alleged as cause against making an order for sale — Agreemant to restrain Alienation — Construction of 23 & 24 Vict. c. 154, s. 10.

VOL. IV.] EQUITY SERIES. 47 IN THE MATTER OF THE ESTATE OF ANTHONY COFFEY, L. B. Court. PATRICK DOCKERAY, AND JOHN ELWOOD, OR SOME 1869. OR ONE OF THEM, OWNERS ; PATRICK BEIRNE, PETI- March 5, 6. TIONER. May 3, 5. 8. Jurisdiction of the Landed Estates Court in the case of a legal but equitably avoidable title, alleged as cause against making an order for sale-Agreement to restrain Alienation-Construction of 23 4. 24 net. c. 154, s. 10. When equitable avoidances exist as to legal estates created, and when posÂÂÂÂsession goes with the legal but equitably avoidable title, the grounds of equiÂÂÂÂtable avoidance ought to be established before the case is ripe for a petition in the Landed Estates Court; but when visible possession remains with the title shown, and an allegation of title only exists against it, the rule is flexible for the exercise of a discretion, whether or not the alleged title ought to stay the action of the Court. An agreement which, under special provisions, affirmatively allows alienaÂÂÂÂtion, is an agreement to restrain alienation within the meaning of 23 & 24 Viet. e. 154, s. 10. THE petition for a sale of the leasehold interests in this case, situate in the Co. Mayo, was presented upon foot of a judgment for £100, with costs, obtained against the owner in an action of trespass, and registered as a mortgage against the premises on the 7th of April, 1868. It stated that the lands were held by Anthony Coffey, under leases for terms of years made by Lord Dillon, and bearing date, respectively, the 20th of August, 1855, and 8th of May, 1858 ; that Coffey executed deeds dated, respectively, the 19th of March, 1868, and 31st of March, 1868, purporting to be assignments to persons named Dockeray and Elwood, respectively, of the demised premises ; but that, as to the premises alleged to be assigned to Dockeray, Coffey had never given up possession of them to Dockeray, but continued to reside upon them, and was in acÂÂÂÂtual possession of them ; and as to the other premises, Coffey had not given up possession of them, but continued in the receipt of the rent of them. The petition impugned both the alleged assignÂÂÂÂments as made without consideration, and as fraudulent and void, and as also void by reason of being made in violation of a coveÂÂÂÂnant contained in the leases made by Lord Dillon. 48 THE IRISH REPORTS. [I. R. L. E. Court. A conditional order for sale having been obtained, Judge Lynch 1869. directed the petition to be amended, by causing Dockeray and In re Elwood to be named, alternatively, as owners, and to be served in COFFEY'S ESTATE. that capacity. Cause against making absolute the order was shown by DockeÂÂÂÂray and Elwood, who alleged, in the affidavits made by them, that they were the owners of the property sought to be sold...