The Estate of The Rev. Edmond John Butler, Owner and Petitioner

• Jurisdiction: Ireland
• Judgment Date: 02 February 1863
• Date: 02 February 1863
• Court: Incumbered Estates Court (Ireland)

L. E. Court.

In the Matter of the Estate of The Rev. EDMOND JOHN BUTLER,

Owner and Petitioner.

Harrison v. Duigenan 2 Dr. & W. 295.

Gresley v. Adderley 1 Swanst. 579.

Thomas v. BrigstockeENR 1 Russ. 64.

AnonymousENR 2 Atk. 15.

Groom v. BlakeIR 6 Ir. Com. Law Rep. 400; S. C., in error, 8 Ir. Com. Rep. 428.

Doe v. EvansENR 1 C. B. 717.

Doe v. Powell 3 N. & M. 616.

Underwood v. Courtown 2 S. & L. 65.

Sturgis v. MorseENRENR 24 Beav. 541; S. C., on appeal, 3 De G. & J. 1.

Cook v. Field 15 Q. B. 460.

CHANCERY REPORTS. 453 1863. L. E. Court. Feb. 2. A being seised in fee of lands in Ireland, granted an annuity in the year 1812. In 1820, A beÂÂcame insolvent in England ; and the then usual deeds of conveyance were executed. In the year 1822, the fees of the annum filed a bill in ChanÂÂcery in Ireland for a receiver, and prayed process against the assignees in the English insolvency, who however never answer ed. The pos session of A remained un disturbed by the assignees ; and in the year 1828 a receiver was appointed over, and went into possession perty, or embracery, were put into execution in Ireland ; and by of, the lands, and was in section 2, no one was to buy or sell, or get any pretended right possession at the of time the or title to lands, unless the sellor or grantor, or his ancestors, were filing of the in possession a year before. petition for sale in this • matter. On the 31st of July 1861, the assignees conveyed the lands to the owner in this matter subject to the annuity. On a petition for sale, presented by the owner-Held that, as the Landed Estates Court always requires that an owner and petitioner proceedÂÂing for sale should be in-the actual or virtual possession of the estate, or in the receipt of the rents, the owner must establish his title, either by ejectment or by a petition in Chancery. The possession of a receiver is the possession of all parties \ according to their titles. Semble-The relation of trustee and cestui que trusts, subsists between the assignees and the insolvent and his creditors. (a) 2 Dr. & W. 295. (b) 1 Swanst. 579. (c) 1 Russ. 64. (d) 2 Atk. 15. (e) 6 Ir. Com. Law Rep. 400; S. C., in error, 8 Ir. Com. Rep. 428. 454 CHANCERY REPORTS. 1863. On this point he cited also Sheppard's Touchstone, p. 240 ; Doe L` Court. v. Evans (a); Doe v. Powell (b); Underwood v. Courtown (c). In re BUTLER'S ESTATE. Mr. S. W. Flanagan, for the owner, in support of the conditional order. Argument. The possession of the receiver, from the year 1828 to the year 1861, was the possession of the assignees in the English insolvency ; and the title of the owner who took under a conveyance from them in the latter year is in nowise affected by the Statute of Limitations. An insolvent and his assignees stand in the relation of cestui que trust and trustee ; and the insolvent was merely tenant at will, and incapable of having a possession adverse to his assignees. If the possession of the receiver was not the possession of the assignees, the latter would be barred by the period which elapsed from the time of the insolvency (1820) to the appointment of the receiver (1828), a period of only eight years ; for the assignee could not by any means have disturbed the possession of the receiver. He cited Sturgis v. Morse (d). The sale by the assignees was valid, and was not void as a sale of " a pretended right or title ;" Cook v. Field (e). Judgment. HARGREAVE, J. The facts of this case are simple ; but they raise two positions which seem to me to...