The Estate of Robert Ferguson Grier, Owner; ex parte John Court Ferguson Grier, Petitioner

• Jurisdiction: Ireland
• Judgment Date: 19 June 1870
• Date: 19 June 1870
• Court: Court of Appeal in Chancery (Ireland)

Ch. App.

IN THE MATTER OF THE ESTATE OF ROBERT FERGUSON GRIER,

OWNER;

EX PARTE JOHN COURT FERGUSON GRIER,

PETITIONER.

Higginson v. BarnebyENR 2 Sim. & St. 516.

Trevor v. Trevor 1 Eq. Cas. Abr. 387.

Thompson v. FisherELR L. R. 10 Eq. 207.

Viscount Holmesdale v. WestELR L. R. 3 Eq. 474.

Lord Glenorchy v. Bosville 1 Wh. & Tud. L. C. 1.

Rochfort v. Fitsmaurice 2 Dr. & War. 1.

Blackburn v. StablesENR 2 V. & B. 369.

In re Devereux 4 Ir. Jur. 16.

In re Keogh 4 Ir. Ch. R. 288.

Patch v. WardELR L. R. 3 Ch. App. 203.

March v. Russell 3 Myl. & Cr. 31.

In re de Chabot 6 Ir. Jur. N. S. 142.

Gillespie v. AlexanderENR 3 Russ. 130.

Todd v. StudholmeENR 3 K. & J. 324.

Rutledge v. HoodUNK 3 Ir. C. L. R. 447.

In re de Chabot 6 Ir. Jur. N. S. 142.

David v. Frowd 1 Myl. & K. 200.

Sawyer v. BirchamoreENR 1 Keen, 391, S. C. 2 Myl. & Cr. 611.

Gurney v. Lord OranmoreENR 7 H. L. C. 241.

Earl of Bandon v. BecherENR 3 Cl. & Fin. 479.

Power v. ReevesENR 10 H. L. C. 645.

Rorke v. ErringtonENR 7 H. L. C. 617.

In re Johnstone 7 Ir. Jur. N. S. 36.

In re Ashe 5 Ir. Ch. R. 305.

In re Flood 17 Ir. Ch. R. 116.

Dod v. Dod 1 Ambl. 274.

Hart v. MiddlehurstENR 3 Atk. 373.

Trevor v. TrevorENR 1 H. L. C. 257.

Holmesdale v. WestELR L. R. 3 Eq. 482.

Duke of Bedford v. Marquis of Abercorn 1 Myl. & Cr. 312.

Holmesdale v. WestELR L. R. 3 Eq. 482.

Executory Articles — Settlement in pursuance of — Portions — Landed Estates Court — Jurisdiction —

THE IRISH REPORTS. tl87PP • 10 April 21, 24. May 6. June 6, 7, 8, 19. equitp IN THE MATTER OF THE ESTATE OF ROBERT FERGUSON GRIER, OWNER ; Ex PARTE JOHN COURT FERGUSON GRIER, PETITIONER. Executory Articles-Settlement in pursuance of-Portions-Landed- Estates Court-Jurisdiction-Effect of Absolute Order for Sale. 1. By articles executed previously to his marriage, A. agreed to settle cerÂÂÂtain lands upon the issue of his intended marriage after payment of an annuity to his intended wife : Held, that the articles did not authorize a charge of portions for younger children. 2. Lands were sold in the Landed Estates Court, under a petition founded upon alleged incumbrances, which the Court of Appeal afterwards held not to be valid charges ; the conveyance to the purchaser was executed, and a large part of the purchase money paid out to the alleged incumbrancers : Held, that notwithstanding the absolute order for sale, the owner was enÂÂÂtitled (without prejudice to the sale and the rights of the purchaser thereunder) to be paid the sum still remaining in Court, and to follow the sums which had been paid out in the hands of the persons who had received them. THIS ease originally came before the Court upon an appeal by the owner, Robert Ferguson Grier, from an order of LYNCH, J., dated the 23rd of January, 1871, refusing the Appellant's motion afterwards mentioned. The facts were as follows : Robert Grier, the father of the owner and of the Petitioner, was seised of the lands of Garvagh and Gurteen, in the county of Longford. Being so seised he, on the occasion of his marriage VOL. VI. THE IRISH REPORTS. [I. R. with one Jane Slemmon, executed a deed of settlement, dated the 15th of April, 1822. By it, in consideration of the sum of £600, the marriage portion of the said Jane Slemmon, he granted to her an annuity of £60 a year for her life, charged upon the lands, to commence from his death, with powers of distress and entry, and the deed contained the following clause :- " And, moreover, it is further agreed upon that the said Robert Grier do settle all the residue and remainder of the said lands, houses, and premises, with their issues and profits now arising, or that may hereafter arise, from them the said lands, houses, and premises, upon his issue by the said Jane Slemmon, after the payment of the said sum of £60 a year as a jointure settled by the said Robert Grier on the said Jane Slemmon, his intended wife." The marriage was solemnized, and there was issue thereof nine children-four sons and five daughters. The Appellant, Robert Ferguson Grier, who was the owner in the matter, and the PetiÂÂÂtioner, John Court Ferguson Grier, were two of the sons, the ApÂÂÂpellant being the eldest, and the heir-at-law of Robert Grier. By a deed-poll, dated the 5th of September, 1861, reciting the settlement of the 15th of April, 1822, the covenant to settle the residue of the lands upon the issue of the marriage, and that he was minded to execute that covenant, Robert Grier, "in execution and performance of the said covenant, and in performance of the power given to him by the said covenant, and by all other powers enabling him thereto," charged and encumbered the lands, after payment of the said sum of £60 a year, with the sum of £200 to be paid. to each of his sons other than the eldest son, and with the sum of £700 to each of his daughters-those sums to be payable after the death of him, Robert Grier ; and " in further execution and performance of the said covenant," he settled, conveyed, and assured unto Robert Ferguson Grier (the owner and Appellant) all the said lands of Garvagh and Gurteen, being the residue and remainder of the premises comprised in the marriage settlement, to hold the same unto the said Robert Ferguson Grier in tail male, with various remainders over. The total of the sums which Robert Grier thus purported to charge upon the lands amounted to £4100. Robert Grier died on the 19th of January, 1868, and on the 7th of February, 1868, the petition for sale in this matter was filed on VoL. VI.] EQUITY SERIES. behalf of John Court Ferguson Grier, in the Landed Estates Court, by Messrs. Samuel and Richard C. Walker, as Solicitors for the PetiÂÂÂtioner, relying solely upon the charges which were purported to be created by the deed-poll of the 5th of September, 1861. There was, in fact, no other charge upon the lands but the annuity of £60 a year to Jane Grier, and these alleged charges amounting to £4100. On the 13th of February, 1868, the Court made a conditional order for sale, unless cause was shown within three months after service of the order upon Robert Ferguson Grier, and two other persons named. At this time Robert Ferguson Grier was residing in Texas, whither he had emigrated several years ago, and whence he did not return to Ireland until the 18th July, 1870, and it accordingly became necessary to substitute service of the conditional order upon him, and by an order dated 25th May, 1868, it was ordered that service of the conditional order for sale should be deemed good service by serving said order and a copy of the now stating order on Mrs. Jane Grier, his mother, and on a Mr. Alexander Chartres, and that the time for showing cause against said order should be limited to twenty-eight days. Copies of the orders were served accordingly; the conditional order for sale was made absolute on the 7th July, 1868 ; the lands were sold on the 4th May, 1869, for the sum of £4120, and a conveyance was duly executed to the purchaser. The schedule of incumbrances was lodged on the 8th May, 1869. No notice of the lodging thereof, nor any final notice to claimants, was ever served upon Robert Ferguson Grier, nor was any order to substitute service thereof ever made. The schedule of incumbrances was ruled on the 6th and 14th June, and 8th and 12th July, 1869, and under those rulings sums of money, portions of the purchase money, were paid out to the persons claiming to be entitled to charges under the deed of 5th September, 1861, or to their mortgagees. A sum of £537 4s. 4d. stock, and £23 14s. 3d., remained in Court after these payments. On the 26th November, 1870, Robert Ferguson Grier, having returned to Ireland, caused a notice of motion before Judge Lynch to be served for an order that he should be at liberty to apply to the Court, or that the Court should forthwith order that its orders B2 E IRISH REPORTS. and decisions on the final schedule of encumbrances, whereby the several sums, portions of the purchase money, had been paid out, should be reviewed and rescinded, and that the several sums paid out should be re-lodged by the parties who had received them, and that those sums, when re-lodged, together with the moneys remainÂÂÂing in Court, should be impounded pending the further order of the Court, or that the owner might be at liberty to appeal from said orders and decisions, notwithstanding the lapse of time from the month of June, 1869. Affidavits in support of this motion were made by Robert Ferguson Grier, by Mrs. Jane Grier, and by Mr. Alexander Chartres. From these affidavits it appeared that Robert Ferguson Grier had never heard of the order for sale, and never received a copy of the conditional order until his return to Ireland in July, 1870 ; that neither Mrs. Jane Grier nor Mr. Alexander Chartres was his agent ; that neither of them had ever forwarded, or been desired to forward, any notice or order to him ; and that during all the time of the pendency of the proceedings the Petitioner well knew his residence and address, but had not communicated with him. By the affidavits filed to oppose the motion it was sought to establish that Robert Ferguson Grier was fully aware of the pro-feedings in the Landed Estates Court. Mr. Samuel Walker, one of the solicitors for the Petitioner, stated that in 1866 he had been in correspondence with Robert Grier, respecting the state of the property, and Robert Ferguson Grier's claims to it. He had also, on the 27th March, 1868, addressed a letter to a Mr. John H. Duncan, the solicitor of the owner, Robert Ferguson Grier, in Texas, apÂÂÂprising him of the petition having been filed, and enclosing him a copy of the conditional order for sale, and on the 18th May, 1868, Mr. Duncan had, at the instance of Robert F. Grier, written to a Mr. John Fleming, making inquiries as to the nature and condition of the property. In Mr. Walker's affidavit a letter...