The Estate of Robert Hall and Others, Owners; Robert Hall and Other, Petitioners

JurisdictionIreland
Judgment Date12 May 1893
Date12 May 1893
CourtChancery Division (Ireland)

Monroe, J.

IN THE MATTER OF THE ESTATE OF ROBERT HALL AND OTHERS,
OWNERS;

ROBERT HALL AND OTHER,
PETITIONERS.

Le Nere v. LeNeveUNK Ambl. 436, 2 W. & T. L. C. 68.

Brotherton v. HattENR 2 Vern. 573.

Mountford v. Scott T. & R. 274.

Wormald v. Maitland 35 L. J. Ch. (N. S.) 69.

In re Allen's Estate Ir. R. 1 Eq. 455.

Agra Bank v. Barry Ir. R. 6 Eq. 128; L. R. 7 H. L.

Chadwick v. TurnerELR L. R. 1 Ch. App. 310.

Brotherton v. HattENR 2 Vern. 573.

Hine v. DoddENR 2 Atk. 275.

Wyatt v. Barwell 19 ves. 435.

Jolland v. Stainbridge 3 Ves. 478.

In re Ronayne 13 Ir. Ch. R. 444.

In re Cousins 31. Ch. Div. 671.

In re Beamish's EstateUNK 27 L. R. Ir. 326.

Arden v. Arden 29 Ch. Div. 702.

Malcolm v. Charlesworth 1 Kee. 63.

In re Henry's EstateUNK 31 L. R. Ir. 158.

In re Beamish's EstateUNK 27 L. R. Ir. 326.

Arden v. Arden 29 Ch. Div. 702

In re Devereux's Estate 4 Ir. Jur. 16.

In re Gage's EstateUNK 17 L. R. Ir. 111.

In re Grier's EstateELR Ir. R. 6 Eq. 1; L. R. 5 H. L. 688.

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

Beamish's EstateUNK 27 L. R. Ir. 326.

Henry's EstateUNK 31 L. R. Ir. 158.

Scott v. ScottUNK 9 L. R. Ir. 367.

Ferguson v. BenyonUNK 17 L. R. Ir. 212.

Hyett v. Mekin 25 Ch. Div. 735.

Malcolm v. Charlesworth 1 Keene, 63.

Arden v. Arden 29 Ch. Div. 702.

Devereux's Estate 4 Ir. Jur. 16.

Gage's EstateUNK 17 L. R. Ir. 111.

Grier's EstateELR Ir. R. 6 Eq. 1; L. R. 5 H. L. 688.

Priority — Registration of deed — Notice — Conversion of estate — Absolute order for sale — Money paid out of Court in error — Jurisdiction to order repayment — Laches.

416 LAW REPORTS (IRELAND). [L. It. I. Monroe, J. 1893. IN THE MATTER OF THE ESTATE OF ROBERT HALL AND OTHERS, OWNERS ; ROBERT HALL AND OTWRRS, PETITIONERS. May 2, 3, 12, Priority-Registration of deed-Notice-Conversion of estate-Absolute order for sale-Money paid out of Court in error-Jurisdiction to order repayment -Laches. In 1872 B., as solicitor for three out of five co-owners of land, presented a petition for sale, on which an absolute order was made in February, 1873. L. was then an apprentice to B. He was admitted a solicitor in 1874, and carried on business on his own account in B.'s office. On the 21st June, 1875, and the 26th July, 1875, the owners executed mortgages to T. and V., by whose soliciÂtor the mortgage deeds were prepared. The signature of one of the mortgagors to each deed was witnessed by B., and M. who was his managing clerk. Pursuant to an agreement, dated the 1st June, 1875, L. took a transfer of the goodwill of B.'s business, as from the 1st August, 1875, and retained M. as clerk. In November, 1875, L. advanced money to the owners on a mortgage dated the 30th of that month, the signature of one of the mortgagors being witnessed by B. This mortgage was registered on the 1st December, 1875, prior to the registration of the mortgages to T. and V. A supplemental petition for sale of additional lands was prepared by L. as solicitor for four of the owners, and was verified on the 27th November, 1875. The Court being of opinion on. the eviÂdence that L., -when taking his own security, had not actual knowledge of the earlier mortgages : Held, that notice to him, through B. or M., could not be imputed, so as to displace the priority which his security had acquired by registration. The conversion of an estate effected as in In re Beamish's Estate (27 L. R. Ir. 326) and In re Henry's Estate (31 L. R. Ir. 158), by force of an absolute order for sale, does not exclude the operation of the Registry Act in regulating the priority of incumbrances created by the owners up to the time of an actual sale. Although the Court has jurisdiction to order an incumbrancer who has been paid out of priority to refund the amount, the exercise of such jurisdiction is discretionary, and such an order was refused where the applicants had notice of the lodgment and vouching of the final schedule of incumbrances, and allowed what the Court considered an unreasonable length of time to elapse before raising any objection. APPLICATION on behalf of Elizabeth Taaffe and HughVaughan, Monroe, 1. ineumbrancers on the lands sold in the matter, for a declaration that 1893. In re they should be at liberty to file an objection to the final schedule LL's of incumbrances, notwithstanding that same had been ruled upon ; ESTATE. and that this motion and the affidavits filed in support of same might be treated as such objection, and that accordingly it might be declared that they were entitled to be placed on the said schedule in priority to George Hamilton Lyster ; and that the said George Hamilton Lyster should be ordered to bring into Court the moneys paid to him on foot of the mortgage dated the 30th November, 1875. The material facts of the case, including the inference drawn by the Court upon points as to which the evidence was conflicting, will be found fully stated in the judgment, infra, p. 421. At the suggestion of the Court, the question as to notice was first argued. .Matheson, Q.C., and D. MTarthy Mahony, for Miss Taaffe and Mr. Vaughan : Morrow must have known of the existence of the mortgages of the 21st June, 1875, and 26th July, 1875. Lyster was at the time practically in the position of solicitor having carriage. There were two channels through which he is affected with notice. Bolton was solicitor for the Halls in relation to these proceedings, and Bolton and Morrow were attesting witnesses to the deeds : Madden on Registration, pp. 219, et seq. ; Le Neve v. LeNeve (1) ; Brotherton v. Halt (2). The transaction was partly closed at the date of the transfer from Bolton to Lyster. It was completed in Lyster's office. The deed is executed by the remaining party, Mrs. Shortt, after the 1st August, in the presence of Bolton, and in Lyster's office : Mountford v. Scott (3). As solicitor having carriage of the proceedings, Lyster was a trustee for all incumbrancers. There is a strong case of actual notice. There is a clause in the agreement transferring the business that Bolton is to give Lyster every assistance in his power and introduce clients. (1) Ambl. 436, 2 W. & T. L. C. 68. (2) 2 Vern. 573. (3) T. & R. 274. 418 LAW REPORTS (IRELAND). [L. It. I. Monroe, J. Piers F. White, Q. C., and Gordon, Q. C. (with them Sandford), 1893. for Mr. Lyster : In re HALL'S The settled law in Ireland is that a registered deed can be ESTATE. postponed to an unregistered conveyance only by actual notice. There are only two cases reported in which constuctive notice was held for that purpose sufficient, viz. Wormald v. Maitland (1), and In re Allen's Estate (2), a decision of the late Judge Lynch. These cases were definitely overruled in the case of the Agra Bank v. Barry (3). They had previously been repudiated in other cases, e. g. Russell v. Cashell, cited in Madden on Registration, p. 218, in which, and the following pages, all the authorities except the Agra Bank v. Barry (3), which was not then decided, will be found collected. To postpone the registered deed the notice " must be clear, distinct, and amounting, in fact, to fraud " : Chadwick v. Turner (4). Brotherton v. Hatt (5) was a perfectly clear case, turning on the position of a scrivener in old times, who was held to be the agent of both parties in connexion with a loan. Here there is a total absence of proof of actual notice : Rine v. Dodd (6) ; Wyatt v. Barwell (7); Jolland v. Stainbridge (8). The present claimants had notice of the schedule of incumbrances. D. DinCarthy Mahony, in reply, cited In re Ronayne (9) ; In re Cousins (10). As to the question whether a conversion of the estate by the absolute order for sale would exclude the operation of the Registry Act Matheson, Q. C. :- An absolute order for the sale of the lands was made in 1873, before these mortgages were executed, and its effect was to convert (1) 35 L. J. Ch. (N. S.) 69. (6) 2 Atk. 275. (2) Ir. R. 1 Eq. 455. (7) 19 Ves. 435. (3) Ir. R. 6 Eq. 128 ; L. R. 7 H. L. (8) 3 Ves. 478. (4) L. R. 1 Ch. App. 310. [135. (9) 13 Ir. Ch. R. 444. (5) 2 Vern. 573. (10) 31 Ch. Div. 671. Vox,. XXXI.] CHANCERY DIVISION. 419 the estate from realty into personalty. The result is that a deal- Monroe, T. ing with an estate after an absolute order for sale has been made 1893. HALL re in this Court is a dealing with personalty, analogous to a case in S which there has been an absolute trust for sale of real estate by ESTATF. deed or will : In re Beamish's Estate (1). Any dealing with the lands after an order for the sale of them does not come within the Registry Act : Arden v. Arden (2), decided on the Middlesex Registration Act, the words of which are certainly as wide as those of the 6 Anne c. 2. There can be no difference between a deed creating a trust for sale and the order of a compeÂtent Court directing the sale of real property. An assignment of the proceeds of sale of real estate would be unaffected by the Registry...

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  • Re Mulhern; Mulhern v Mulhern
    • Ireland
    • Supreme Court (Irish Free State)
    • 8 May 1931
    ... ... Letters of administration of estate of intestate granted to his widow - Purchase of ... M., the owner of a publichouse and of other real and personal estate, died intestate in 1916, ... ...

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