The Estate of Arthur C. S. Cleland

• Jurisdiction: Ireland
• Judgment Date: 16 November 1908
• Date: 16 November 1908
• Court: Court of Appeal (Ireland)

In the Matter of the Estate of Arthur C. S. Cleland.

Wylie, J.

Appeal.

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1909.

Settlement — Life estate subject to overriding power of appointment — Exercise of power — Effect — Life estate made determinable on happening of certain events — Forfeiture — Power to charge — Charge of eight years' arrears of pin-money — Registration of judgment mortgage — Validity of — English judgment extended to Ireland under Judgments Extension Act, 1868 (31 & 32 Vict. c. 54), sect. 4, “execution”; sect. 1, costs of obtaining and registering certificate — Judgment Mortgage Act, 1850 (13 & 14 Vict. c. 29), s. 6 — Affidavit of judgment — Omission therefrom of costs of obtaining and registering certificate.

Held, by Wylie, J., (1) that A. C. had still vested in him, under the settlement of 1886, by virtue of the Settled Land Acts, power to sell the said lands, and (2) that the deed of charge of 1902 was not an excessive exercise of the power to charge an annuity by way of pin-money, and did not cause a cesser of the life estate of A. C. under the first-mentioned settlement of 1890; but

Held, by the Court of Appeal (affirming the decision of Wylie, J.), (3) that an English judgment extended to Ireland under the Judgments Extension Act, 1868, can be registered as a judgment mortgage, and that the omission from the affidavit of judgment, made for the purpose of such registration, of the costs of obtaining and registering in Ireland the certificate of the entry of the judgment does not invalidate the registration of the judgment mortgage, and, accordingly, that, on the registration of the judgment mortgage in 1903, the life estate of A. C. under the first-mentioned settlement of 1890 determined.

Questions of law submitted by the Estates Commissioners for the decision of the Judicial Commissioner, pursuant to section 23 (1) of the Irish Land Act, 1903.

The material facts set out in the memorandum of the Estates Commissioners, as appearing in the judgment of Wylie, J., were as follows:—

By an indenture of settlement, dated the 22nd October, 1886, John Cleland, father of Arthur Cleland, and said Arthur Cleland, in exercise of the powers therein referred to, granted the “Cleland Estates” unto Edward Cave and Edward Bates, the trustees therein named, their heirs and assigns, to such uses and upon such trusts, and subject to such powers, as the said John Cleland and Arthur Cleland should jointly appoint; and in default of and until such appointment, to the use of the said John Cleland and his assigns for his life, and after his death to the use of the said Arthur Cleland and his assigns for his life, with remainder to the use of the first and other sons of the said Arthur Cleland successively in remainder in tail, with divers remainders over.

By an indenture, dated the 5th June, 1888, the said Arthur Cleland, in consideration of £600, conveyed unto the said John Cleland, his heirs and assigns, all the estate, interest, and remainder of him the said Arthur Cleland expectant on the determination of the life estate of the said John Cleland subsisting by virtue of the said indenture of the 22nd October, 1886.

Upon the marriage of the said Arthur Cleland two material settlements were executed:—

(1) A settlement, dated 9th June, 1890, made between the said John Cleland, of the first part, and the said Arthur Cleland, of the second part, Mabel Sophia Cleland (by her then name of Mabel Sophia d'Aquilar), of the third part, and Sir Augustus Webster and Francis Brodigan of the fourth part, whereby, after reciting (inter alia) that “whereas, upon the treaty for the said marriage, it was agreed that the said estate in remainder and interest of him, the said Arthur Cleland, expectant on the determination of the said life estate of the said John Cleland, so conveyed to the said John Cleland in manner aforesaid,…should be assured by the said John Cleland to the uses, upon the trusts, and subject to the provisions and restrictions hereinafter appearing; and that the said John Cleland and Arthur Cleland should exercise their joint power of appointment for the purposes of confirming the assurance hereinafter contained of the said life estate in remainder of the said Arthur Cleland, to such uses” &c., the said John Cleland granted and conveyed, and the said John Cleland and Arthur Cleland, in exercise of the joint power of appointment vested in them by the settlement of the 22nd October, 1886, appointed and confirmed the said “Cleland Estates” unto the said Arthur Cleland after the death of the said John Cleland, to the use of the said Arthur Cleland for life, or until the happening of any of the events therein mentioned, one of which was, if he should, either wholly or partially, assign, charge, or alienate his estate or interest in the premises (except as thereinafter mentioned with regard to pin-money), and another of which said events was, if he should suffer any judgment mortgage to be registered so as to affect such estate or interest; and from and after the determination, upon any of such events, during the life of the said Arthur Cleland, of the estate and interest so limited to him, to the use of the trustees of the said settlement for the residue of the life of the said Arthur Cleland upon trust, during the joint lives of the said Arthur Cleland and his wife Mabel Sophia Cleland, to pay the income to the said Mabel Sophia Cleland for her separate use without power of anticipation; and after her death, subject to certain discretionary trusts, in trust for John Cleland, his heirs and assigns, during the life of the said Arthur Cleland. And it was by the same indenture provided that it should be lawful for the said Arthur Cleland, after the decease of the said John Cleland, to charge his life estate with the payment, during the joint lives of the said Arthur Cleland and Mabel Sophia Cleland, to the said Mabel Sophia Cleland, by way of pin-money, of any annual sum not exceeding £200, and that no such charge should cause any cesser or forfeiture of the life estate of the said Arthur Cleland under the same indenture.

(2) A settlement, also dated the 9th June, 1890, and made between the said Arthur Cleland, of the first part, his wife, the said Mabel Sophia Cleland (by her then name d'Aquilar), of the second part, Henry T. d'Aquilar, of the third part, the said John Cleland of the fourth part, and trustees, of the fifth part, whereby the said Mabel Sophia Cleland's fortune was settled. This settlement contained a covenant by the said Arthur Cleland with the said Mabel Sophia d'Aquilar, that in case they should both survive the said John Cleland he, the said Arthur Cleland, would forthwith, after the decease of the said John Cleland, by some effectual and proper deed or instrument, secure out of his life income from the “Cleland Estates” to the said Mabel Sophia d'Aquilar a yearly annuity of at least £200 during the joint lives of himself and the said Mabel Sophia d'Aquilar by way of pin-money, and without power of anticipation, to commence from the decease of the said John Cleland, and to be payable quarterly.

John Cleland died on the 24th October, 1893.

On the 23rd January, 1902, the said Arthur Cleland, purporting to act in pursuance of the said covenant, and in exercise of the power vested in him for that purpose under the said settlement of the 9th June, 1890, executed a deed whereby, after reciting the power to charge, the proviso that such a charge should not cause a cesser of the life estate, the said covenant to charge, the death of John Cleland, that he had not yet executed any formal deed to give effect to the equitable charge, and that his wife had requested him to perform the said covenant, he the said Arthur Cleland did charge, as from the death of the said John Cleland, all his life estate and interest in the “Cleland Estates” under said settlement and the rents and profits thereof with the payment of the yearly annuity of £200 by way of pin-money unto the said Mabel Sophia Cleland during the joint lives of him the said Arthur Cleland and Mabel Sophia Cleland for her separate use without power of anticipation. By said deed of charge the said Arthur Cleland admitted that eight years' arrears of said annuity, amounting to £1600, were due at that date; and by same deed he covenanted to pay the said sum in manner therein mentioned.

On the 24th January, 1902, the said Mabel Sophia Cleland obtained a loan of £1600, and by deed of same date assigned said charge to secure said loan. By this deed Arthur Cleland also secured said loan by his personal covenant and by an assignment of a policy of insurance.

On the 16th June, 1902, a judgment was recovered in the King's Bench Division of the High Court of Justice in England against Arthur Cleland for the sum of £990 debt and £6 19s. costs. On the 31st October, 1902, the said judgment was extended to Ireland under the provisions of the Judgments Extension Act, 1868; and the same was, on the 16th April, 1903, registered as a judgment mortgage against the interest of the said Arthur Cleland in the “Cleland Estates.” The affidavit of judgment contained no reference to the costs of registering the judgment in Ireland.

In 1905 Arthur Cleland instituted proceedings for the sale of portion of the “Cleland Estates” under the Land Purchase Acts.

The following questions were submitted:—

1. Was the said judgment validly registered as a statutable mortgage against any estate or interest of the said Arthur Cleland in any of the lands and premises? And, if so, did the registration thereof operate to cause a forfeiture of his life estate therein under the provisions of the said first-mentioned indenture of settlement of the 9th day of June, 1890?

2. Did the execution by the said Arthur Cleland of the said indentures of the 23rd and 24th days of...