The Estate of David Vandeleur Roche, Owner; John Vanderkiste, Petitioner
| Jurisdiction | Ireland |
| Judgment Date | 11 January 1890 |
| Date | 11 January 1890 |
| Court | Chancery Division (Ireland) |
Chancery Division.
Monroe, J.
Metcalf v. The Archibishop of York 1 My. & C. 547.
Stack v. Royse 12 Ir. Ch. R. 246; on appeal13 Ir. Ch. R. 213.
Galavan v. DunneUNK 7 L. r. Ir. 144.
Jones v. WilliamsENR 24 Beav. 47.
Dearle v. HallENR 3 Russ. 1.
Daniel v. Freeman Ir. R. 11 Eq. 233, 638.
Lee v. HowlettENR 2 K. & J. 531
Hughes' TrustsENR 2 H. & M. 89.
Ashton v. Dalton 2 Col. 565.
Ex parte Bisdee 1 M. D. & De G. 333.
Pryce BuryENR 2 Drew. 42.
Burke's EstateUNK 9 L. R. Ir. 24.
Wilmot v. PikeENR 5 Hare, 14.
Wiltshire v. RabbitsENR 14 Sim. 76
Tyler v. LakeENR 4 Sim. 351.
Johnson v. WebsterENR 4 De G. M. & G. 474.
Lord Compton v. Oxenden 2 Ves. Jun. 263.
Belaney v. BelaneyELRELR L. R. 2 Eq. 210. 210; L. R. 2 Ch. App. 138.
Gunter v. GunterENR 23 Beav. 571.
Johnson v. WebsterENR 4 De G. M. & G. 474.
Metcalf, v. Archbishop of YorkENR 1 My. & Cr. 547.
Stack v. Royse 12 Ir. Ch. R. 246; on appeal13 Ir. Ch. R. 213.
Johnson v. WebsterENR 4 De G. M. & G. 474.
Tyler v. LakeENR 4 Sim. 351.
Pryce v. BuryENR 2 Drew. 42.
Burke's EstateUNK 9 L. R. Ir. 24.
Ex parte Bisdee 1 M. D. & De G. 333.
Dearle v. HallENR 3 Russ. 1.
Lee v. HowlettENR 2 K. & J. 531.
Re HughesENR 2 H. & M. 89.
In Daniel v. Freeman Ir. R. 11 Eq. 233, 638.
Lee v. HowlettENR 2 K. & J. 531.
In re Hughes 33 L. J. Ch. (N. S.) 727.
Rice v. RiceENR 2 Drew. 73.
In Burke's EstateUNK 9 L. R. Ir. 24.
In re French's EstateUNK 21 L. R. Ir. 283, at p. 323.
In re Morgan; Pillgrem v. Pillgrem 18 Ch. Div. 93.
Merger of estate Covenant for further assurance in mortgage of leasehold How far effectual to capture reversion subsequently acquired Notice Conflicting equities Priorities.
58 LAW REPORTS (IRELAND). [L. R. I. Bankruptcy. of the sums claimed by him out of the fund which has been lodged 1890. in Court, and I dismiss the charge, with costs. In re CAMPBELL. Solicitors for the assignees : Messrs. Molloy 8; Molloy. Solicitors for Lavender : Messrs, R. 8f H. Orr. IN THE MATTER OF THE ESTATE OF DAVID VANDELEUR ROCHE, OWNER; JOHN VANDERKISTE, PETITIONER. Merger of estate-Covenant for further assurance in mortgage of leasehold-How far effectual to capture reversion subsequently acquired-NoticeÂÂConflicting equities-Priorities. 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. 9d., 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 D. 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. It., purchased and took a conveyance to himself of the reversion in fee of B, expectant on the determiÂÂnation 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 (C), D. R. and D. V. R., according to their respecÂÂtive 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. R. with his first wife, in 1867, the lands were settled to the use of D. 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. R. paying to the trustees such sum as, with the value of the stock, should amount to 8000, VOL. XXV.] CHANCERY DIVISION. 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 mortÂÂgage 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 mortÂÂgage 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 mortgage was not given to the trustees until 1889. Held-i. That the leasehold interest in B was not merged in the fee-simple; 2. That the covenant for further assurance in the mortgage of the 7th June, 1850, had not the effect of subjecting the fee-simple to the mortgage ; 3. That although, as against D. V. R. personally the Bank would be entitled to priority over the 1122 10s., yet 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, and was entitled to priority over the equitable mortgage. IN this case the petition for sale had been filed by John VanÂÂderkiste, on foot of a charge of 1122 10s., part of a mortgage for 8000, created by deed of 7th June, 1850, and which being vested in trustees, in trust to the extent of said sum of 1122 10s. for the owner, David Vandeleur Roche, under the circumstances hereinafter stated, was assigned by him to the petitioner by deed dated the 7th December, 1886. Cause had been shown by the Provincial Bank, equitable mortÂÂgagees of the lands charged, against the conditional order for sale, on the ground that there had been a merger of the charge ; but after argument the cause shown was disallowed, and the order made absolute. The several parties interested in the estate thereÂÂupon agreed to appoint a receiver by deed, the questions as to priority to be settled by the Judge, and the case now came before the Court upon the settlement of the schedule to the receivership deed. 60 LAW REPORTS (IRELAND). [L. R. I. The material transactions upon which the questions now argued arose were as follows : On the 14th August, 1843, a conveyance in fee was made by one Oliver St. George to the late Sir David Roche, of part ,of the lands of Mitchellstown or Mitchellstowndown, containing 163A. 2R. 3p. (Irish). By another deed, bearing date the 26th August, 1843, the Remembrancer of the Court of Exchequer and other necessary parties conveyed to Sir David Roche the lands of Upper Glenlary, Lower Glenlary, part of Cloghastoe called Powell's part of CloghÂÂastoe, and known as Upper and Lower Glenlary, Glenlary Wood, and Upper Clocastoe, containing 249 acres (Irish), to hold in fee-simple; and also the town and lands of Mitchellstown or MitchellsÂÂtowndown, Garryleagh, Ruisk, Garrycroge, and part of Powell's Cloghastoe, known as Mitchellstowndown, Garryleagh, Ruisk, and Lower Clocastoe, containing about 304 acres (Irish), as same were demised by a lease of the 14th June, 1782, from George Goold to Bernard Powell, for lives renewable for ever, subject to a rent of 221 10s. 9d., and charged as to Upper and Lower Glenlary,Upper Clocastoe, Garryleagh, Ruisk, and Garrycroge, with payment of two perpetual annuities.- of 100, and 200, respectively, created by a deed of the 23rd September, 1802. By deed of mortgage, bearing date the 7th June, 1850, Sir David Roche assigned to John Vandeleur and Edward Vandeleur, the trustees of a settleÂÂment executed on the marriage of Robert and Penelope Vandeleur, the lands comprised in the two deeds of the 14th and 26th August, 1843, for the term of 2000 years, free from all incumbrances, save the head-rent, the two annuities and the tenant's leases which were thereby excepted, to secure a sum of 8000. The deed contained a covenant that " the said Sir David Roche and his heirs and every other person whosoever lawfully, or equitably and rightfully, claimÂÂing or to claim, any right, title, or interest, at law or in equity, of, in, to, out of, or upon the said lands or hereditaments (except in respect of the estate or interest hereinbefore excepted) shall and will from time to time and at all times hereafter . . . make, do, execute, and perfect, all such further . . . assurances, not only for the further . . . . granting and assuring the lands and hereditaÂÂments or any part or parcel thereof to the said John Vandeleur and Edward Vandeleur, for the residue . . . of the said term of 2000 Vox.. XXV.] CHANCERY DIVISION. 61 years . . . . but also for granting, releasing, conveying, and Monroe, J. assuring, the fee-simple, reversion, and inheritance, or other the 1889. /n re estate and interest of the said Sir David Roche, his heirs or Roam's assigns, of and in the same hereditaments and premises with their ESTATE. and every of their respective appurtenances unto and to the use of the said John Vandeleur and Edward Vandeleur or of any other person or persons, his or their assigns, in trust for them." By an Incumbered Estates Court conveyance, bearing date the 26th June, 1852, the fee-simple in the...
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