The Estate of Michael Murphy, Charles H. James, and Michael Hughes, Assignees of Edward Bermingham, an Insolvent, Deceased, or of The Rev. John Butler, Owners; Marcella Livesay, Petitioner

• Jurisdiction: Ireland
• Judgment Date: 03 June 1870
• Date: 03 June 1870
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

Before THE LORD CHANCELLOR and THE LORD JUSTICE OF APPEAL.

IN THE MATTER OF THE ESTATE OF MICHAEL MURPHY, CHARLES H. JAMES, AND MICHAEL HUGHES, ASSIGNEES OF EDWARD BERMINGHAM, AN INSOLVENT, DECEASED, OR OF THE REV. JOHN BUTLER,

OWNERS;

MARCELLA LIVESAY,

PETITIONER

James v. Salter 3 Bingh. N. C. 544.

Garrard v. TuckENR 8 C. B. 231, 250.

Melling v. LeakENR 16 C. B. 652.

Cox v. Dolman 2 De G. M'N. & G. 592.

Lewis v. DuncombeENR 29 Beav. 175.

Knight v. BowyerENRENR 23 Beav. 609; S. C. on Appeal, 2 De G. & J. 521.

In re Butler 13 Ir. Ch. R. 453, 456.

Humble v. HumbleENR 24 Beav. 535.

Hovenden v. Annesley 2 Sch. & Lef. 607, 629.

Tucker v. Sanger M'Clelland, 424.

Bright v. LegertonENR 29 Beav. 64.

Ferguson v. Lomax 2 Dr. & War. 120.

Walker v. Lord Lorton 6 Ir. Ch. R. 329.

Bannatyne v. Barrington 9 Ir. Ch. R. 406.

Jones v. Harris 9 Ves. 486.

Hunter v. Nockolds 1 M'N. & G. 640.

Young v. Lord WaterparkENR 13 Sim. 199.

Snow v. BoothENR 2 K. & J. 132; S. C. on Appeal, 8 De G. M'N. & G. 69.

Gyles v. Gyles 9 Ir. Ch. R. 135.

Drought v. Jones 2 Ir. Eq. R. 303.

Wheeler v. HowellENR 3 K. & J. 198.

Shaw v. JohnsonENR 1 Dr. & Sm. 412.

Ward v. ArchENR 12 Sim. 472.

Burrowes v. GoreENR 6 H. L. C. 907

Statute of Limitations — Annuity — Trust Term.

VOL. V.] EQUITY SERIES. 1:1 IN THE MATTER OF THE ESTATE OF MICHAEL MURPHY, Ch. App. CHARLES H. JAMES, AND MICHAEL HUGHES, As- . 1870 SIGNEES OF EDWARD BERMINGHAM, AN INSOLVENT, June 3. DECEASED, OR OF THE REV. JOHN BUTLER, OWNERS ; MARCELLA LIVESAY, PETITIONER (1). Statute of Limitations-Annuity-Trust Term. In 1812, A., by deed, granted an annuity for two lives, payable out of cerÂÂÂÂtain lands, of which he was owner in fee in possession, and demised the lands for a term of 200 years to secure the annuity, with a proviso for cesser of the term, upon the death of the survivor of the cestui que vies and payment of all arrears. In 1814, A. granted another annuity, payable out of the same lands, and demised them to a trustee for a term of 500 years upon the usual trusts to secure that annuity. In 1820, A. became insolvent. In 1822, the annuitant of 1812 filed a bill to raise the arrears of his annuity and for a Receiver, to which bill the annuitant of 1814 was not a party, and in 1828 a Receiver was appointed in that suit. In 1861, the estate of A. was sold by his assignee in inÂÂÂÂsolvency to B. No payment was ever made on foot of the annuity of 1814, nor were any steps taken to raise the arrears of it. The Receiver continued in reÂÂÂÂceipt of the rents. until the lands were sold by the Landed Estates Court in 1868, on the petition of the annuitant of 1812, when the arrears of that anÂÂÂÂnuity were paid off out of the purchase money ; and there remained in Court a surplus which was claimed by the annuitant of 1814 in payment of the arrears of his annuity; and that claim was resisted by B., on the ground that it was barred by the Statute of Limitations. Held, that, inasmuch as the term of 1812 had become attached in posÂÂÂÂsession on the lands by the appointment of the Receiver in 1828, the term of 1814 then became an estate in reversion within the saving of the 5th section, and continued as such until 1868, when, by the payment of the arrears of the annuity of 1812, that prior term ceased ; and as the trusts of the term of 1814, being express, were saved by the 25th section, the claim of the annuitant of 1814 was not barred by the Statute. Humble v. Humble (24 Beay. 535) is an authority that, if the annuitant of 1812 had not attached his term in possession on the lands, the mere existence of that prior term would have been no protection against the Statute to the term of 1814. APPEAL from an order of Judge Flanagan. (1) Before THE LOSD CHANCELLOR and THE Loan JUSTICE OP APPEAL. L2 THE IRISH REPORTS. [I. R. In 1812, Edward Bermingham, commonly called Lord Athenry, being seised in fee of certain estates in the county of Galway, by indenture of the 30th April, 1812, in consideration of £1575, granted to Robert Moore Peile, Hugh Ferguson, and Japhet Alley, during the joint lives of William Alley and Mary Alley, and the survivor of them, an annuity of £225, payable out of the said lands ; and he demised the lands to the three grantees, for a term of 200 years, in ease the two cestui quo vies, or the survivor of them should so long live, or any part of the annuity should be in arrear, upon trust to permit the said Edward BermingÂÂÂÂham, his heirs and assigns, to receive the rents and profits of the lands, until default should be made in payment of the annuity, and then, upon the usual trusts, to raise the annuity and all arÂÂÂÂrears ; and the indenture contained a proviso for the cesser of the term, upon the decease of the survivor of the cestui vie vies, and upon payment of all arrears of the annuity, with costs and exÂÂÂÂpenses. By indenture of the 19th of September, 1814, the said Edward Bermingham, in consideration of £5004, granted to William Walter an annuity of £553, for the lives of three persons therein named, and of the survivors and survivor of them, to be issuing and payable out of the said Galway estates ; and thereby demised the said lands to Edward Howard, for a term of 500 years, upon trust, by the ways and means therein mentioned, to secure to the said William Walter the regular payment of the annuity, and in the meantime, until default in such payment, to permit Edward BerÂÂÂÂmingham, his heirs and assigns, to receive the rents and profits of the said lands and hereditaments ; with a like proviso for the cesser of the said term, as was contained in the deed of 1812. Edward Bermingham, having been arrested for debt, on the 30th September, 1820, filed his petition for discharge as an insolÂÂÂÂvent debtor : and the annuitants of 1812 and 1814 were placed on the Schedule filed by him in that matter, as admitted creditors in respect of their annuities, and of a large arrear which had accrued due on foot of them ; and in the statement of his property anÂÂÂÂnexed to that Schedule, he stated his landed estates in Ireland to be worth £1361 a-year, or, at twenty years' purchase, £27,220. VOL. V.] EQUITY SERIES. Sir Peter Lawrie and Edmond Lloyd were appointed assignees of Edward Bermingham's estates and effects, which were assigned to them by the provisional assignee. On the 8th November, 1822, the grantees of the annuity of 1812 filed a bill in the Court of Chancery in Ireland against Edward Bermingham, Sir Peter Lawrie, and Edmond Lloyd, and certain other persons (but not including William Walter, or his trustee, Edward Howard), to raise the arrears of that annuity, and for a receiver ; the bill contained a statement that William Walter claimed an interest in the lands by virtue of an annuity charged thereon, which he alleged to have been granted to him by the said Edward Bermingham ; and charged that the said William Walter resided in England, out of the jurisdiction of the Court. On the 18th April, 1828, the bill was amended, by expunging from it all allusion to William Walter, or his annuity.. By an order made in that cause, dated the 25th August, 1828, a receiver was appointed, who went into receipt of the rents of the lands ; and from that time down to the sale by the Landed Estates Court, in this matter, in the year 1868, the rents were received by a succession of receivers, and their balances applied, from time to time, in part payment of the claims of the Plaintiffs in that cause, on foot of their annuity. The annuitant of 1814 never intervened in any way in that suit. In 1861, Francis Holmes was, by an order of the Insolvent Court in England, appointed assignee of Edward Bermingham's estate and effects, which, therefore, were conveyed to him by Sir Peter Lawrie, the surviving assignee, under the previous order. Francis Holmes, as such assignee, proceeded to sell the lands upon which the annuities of 1812 and 1814 were secured ; and on the 13th September, 1861, they were sold to the Rev. Edmond John Butler for £105. In 1865, the arrears of the annuity of 1812, amounting to £1325, were vested in Marcella Livesay, the...