The Estate of David Vandeleur Roche, Owner; John Vanderkiste, Petitioner Same; ex parte Sheehy

• Jurisdiction: Ireland
• Judgment Date: 01 July 1890
• Date: 01 July 1890
• Court: Court of Appeal (Ireland)

Appeal.

Before O'BRIEN, C. J., and FITZ GIBBON and BARRY, L. J J.

IN THE MATTER OF THE ESTATE OF DAVID VANDELEUR ROCHE,

OWNER;

JOHN VANDERKISTE,

PETITIONER

SAME; EX PARTE SHEEHY

Phillips v. PhillipsENR 4 De G. F. & J. 208.

Ford v. WhiteENR 16 Beav. 120.

Thorpe v. HoldsworthELR L. R. 7 Eq. 139.

Agra Bank v. BarryELR L. R. 7 H. L. 135.

Hunt v. Elmes 2 De G. F.& J. 578.

Wylde v. Radford 33 L. J. (N. S.) Ch. 51.

Foster v. Cockerell 3 Cl. & F. 457.

Roberts v. CroftENR 2 De g. & J. 1.

Rice v. RiceENR 2 Drew. 73.

Northern Counties of England Fire Insurance Co. v. Whipp 26 Ch. Div. 482.

National Provincial Bank of England v. Jackson 33 Ch. Div. 1.

Kettlewell v. Watson 26 Ch. Div. 501.

In re Lambert's EstateUNK 13 L. R. Ir. 234.

Farrand v. Yorkshire Banking Co. 40 Ch. Div. 182.

In re Lord Southampton's Estate; Allen v. Lord Southampton 16 Ch. Div. 178.

Union Bank of London v. Kent 39 Ch. Div. 238.

Symonds v. CudmoreENR 4 Mod. 1.

Adams v. Angell 5 Ch. Div. 634.

Swinfen v. SwinfenENR 29 Beav. 199.

Richards v. RichardsENR Johns. 754.

Tyrwhitt v. TyrwhittENR 32 Beav. 244.

Gunter v. GunterENR 23 Beav. 571.

Roberts v. CroftENR 2 De G. & J. 1.

Ex parte Bisdee 1 M. D. & De G. 333.

Ford v. WhiteENR 16 Beav. 120.

Phillips v. PhillipsENR 4 De G. F. & J. 208.

Burke's EstateUNK 9 L. r. Ir. 24.

Rice v. RiceENR 2 Drew. 73.

Burke's EstateUNK 9 L. R. Ir. 24.

Hughes' TrustsENR 2 H. & M. 89.

Daniel v. Freeman Ir. R. 11 Eq. 233, 638.

Burke's EstateUNK 9 L. R. Ir. 24.

Efrench's EstateUNK 21 L. r. Ir. 283.

Sumpter v. CooperENR 2 B. & Ad. 223.

Agra Bank v. BarryELR L. R. 7 H. L. 135.

Re Hughes' TrustsENR 2 H. & M. 89.

Daniell v. Freeman Ir. R. 11 Eq. 233, 638.

Wiltshire v. RabbitsENR 14 Sim. 76.

Williams v. Sorrell 4 Ves. Jun. 389.

Equitable mortgage — Conflicting equities — Notice — Priorities — Merger of estate.

284 LA W REPORTS (IRELAND). [L. Monroe, J. possession, and of which Mr. Bell claims to be in possession 1890. through his testatrix. Whether she can make absolute her condi In re tional order for sale under such circumstances, assuming cause to APALLISTER'S ESTATE. be shown, I express no opinion at present. The rights, or alleged rights of Mr. Bell, as an owner of the entire premises are assailed ; and as he would have no means of recovering his costs against the petitioner in the event of her petition being dismissed, and costs given against her, I must stay all proceedings on this petition, until security for costs be given ; such costs to be measured before the Registrar. Solicitors for George Bell : Messrs. Hayes 8f Son. Solicitor for Jane M'Allister W. S. Collis. Appeal, 1890. May 5, 6, 7. July 1. IN THE MATTER OF THE ESTATE OF DAVID VANDEÂLEUR ROCHE, OWNER ; JOHN VANDERKISTE, PETITIONER (1). SAME ; Ex PARTE SHEEHY (1). Equitable mortgage -Conflicting equities -Notice-Priorities-Merger of estate. Under two separate conveyances, dated in 1843, D. R. was seized in fee of the lands of A, and entitled to a leasehold interest in the lands of B, under a lease dated the 14th June 1782, at a rent of £221 10s. 9c1., and subject, as to part of these lands of B, to two annuities of £100 and £200. On the 7th June, 1850, D. R. mortgaged A and B by demise to secure £8000, with a covenant that D. R. and his heirs, and every other person lawfully claiming any right, title, or interest in the said lands, should do, execute, and perfect all such further assurances, not only for the further granting and assuring the lands to the mortgagees for the residue of the mortgage term, " but also for granting, &c., the fee-simple reversion and inheritance, or other the estate and interest of 1). R., his heirs and assigns, in the said hereditaments," to or in trust for the mortgagees. In 1856 D. V. R., who was a son of D. R., purchased and (1) Before O'BRIEN, C.J., and FITZ GIBBON and BARRY, L.JJ. Vor.. XXV.] CHANCERY DIVISION. 285 took a conveyance to himself of the reversion in fee of B, expectant on the determination of the lease of 1782, subject to an annuity of £240. . By deed, dated in 1856, reciting the above conveyances, and that D. R. was seized in fee of other lands (0), D. R. and D. V. R., according to their respecÂtive estates therein, conveyed A, B, and C, subject to the charges affecting them, to the use of D. V. R. for life, remainder as he should appoint, with ultimate remainder in default of issue to D. V. R. absolutely. By settlement, executed on the marriage of D. V. It. with his first wife in 1867, the lands were settled to the use of D. V. R. for life, remainder to his male issue as he should appoint ; and in default of appointment, to the sons successively in tail male ; and in default of issue male, to D. V. R. absolutely. £6000 East India Stock, part of the wife's fortune, was vested in trustees, upon certain trusts, but subject to the condition that upon D. V. It. paying to the trustees such sum as, with the value of the stock, should amount to £8000, it should be obligatory upon them to sell the stock, and to invest the proceeds thereof, and the sum to be added by D.V. R., upon an assignment of;the mortÂgage of the 7th June, 1850, to be held to the extent of the proceeds of the stock upon the trusts of the settlement; and as to the residue, for D. V. R. absolutely. In 1868 D. V. R. contributed a sum of £1122 10s., which, with the sum of £6877 10s., realized by a sale of the stock, was accordingly applied in taking an assignment to the trustees of the mortgage debt. In 1885 D. V. R. deposited with the Provincial Bank, as security for an advance, the two deeds of 1843, the conveyance of the reversion in fee of B, and the deed of 1856. On the 7th December, 1886, D. V. R. assigned for value to V. the £1122 10s. contributed by him towards the amount necessary for the transfer of the mortgage of the 7th June, 1850. Notice of this assignment was, in 1887, served on the trustees of the settlement of 1867. Notice of the equitable mortÂgage was not given to the trustees until 1889:- Held (affirming the judgment of Monroe, J.)-1, that, as between the Bank and V., a purchaser for value without notice of the Bank's claim, V. had, under all the circumstances of the case, an equity superior to that of the Bank as to the £1122 103., and was entitled to priority over the equitable mortgage ; 2, that the leasehold interest in B was not merged in the fee-simple. In re Burke's Estate (9 L. R. Ir. 24) considered. APPEAL by the Provincial Bank from so much of the order of Monroe, J., dated the 14th February, 1890, as directed that the petitioner, John Vanderk-iste was entitled in priority to the Bank to the interest on the sum of £1122 10s., portion of the £8000 mortgage of the 7th June, 1850. Appeal by Edward John Sheehy from so much of the same Z2 R. I. 286 LAW REPORTS (IRELAND). [t.. Appeal. order as declared that the two annuities of £200 and £100 were 1890. not charged on the fee-simple of the lands of Garryleagh, Ruisk, In re, and Garrycroge. The facts of the...