The Right Hon. GEORGE JAMES Earl of EGMONT, Petitioner; The Rev. Sir WILLIAM LIONEL DARELL, Bart., and Others, Respondents

• Jurisdiction: Ireland
• Judgment Date: 08 June 1863
• Date: 08 June 1863
• Court: High Court of Chancery (Ireland)

Chancery.

The Right Hon. GEORGE JAMES Earl of EGMONT,

Petitioner;

The Rev. Sir WILLIAM LIONEL DARELL, Bart., and Others,

Respondents.

Pemberton v. Pemberton 13 Ves. 290.

Kerrick v. Bransby 7 Bro. P. C. (Tomlin's ed.) 437.

Stacy v. Sprathy 2 De G. & Jo. 94.

Man v. RickettsENR 7 Beav. 93.

French v. Copinger 6 Ir. Chan. Rep. 568.

Pike v. HoareENR 2 Ed. 182; S. C., Amb. 428.

Gresly v. Mousley 4 De G. & Jo. 78.

Charter v. TrevelyanENR 11 Cl. & Fin. 714.

Archbold v. Scully 9 H. of L. Cas. 360.

Williams v. PageENR 24 Beav. 654.

Boyse v. Rossborough 6 H. of L. Cas. 2.

Perry v. Holl 2 De G., F. & Jo. 38.

Tucker v. SangerENR M'Clel. 424.

Keogh v. Barrington Dru. Temp. N. 1.

Smyth v. ClayENR 3 Bro. C. C. 639 n.

Kelly v. Thewles 2 Ir. Chan. Rep. 520.

Bennett v. VadeENR 2 Atk. 324.

Webb v. Clarendon Ib. 424.

Jones v. JonesENR 3 Mer. 161.

Barry v. ButlerENR 2 Moo. P. C. 480.

Hindson v. Weatherill 5 D. M. & G. 301.

Bampton v. BirchallENR 11 Beav. 38.

Blair v. Ormond 1 De G. & Sma. 428.

Hopwood v. Derby 1 Kay. & Jo. 255.

Jones v. GoodrichENR 3 Moo. P. C. 16.

Lorton v. KingstonENR 5 Cl. & Fin. 269.

Malone v. O'ConnorENR 6 Cl. & Fin. 572.

Waters v. Waters 2 De G. & Sma. 590.

Sherwin v. LewisENR 3 Mer. 67.

Wright v. Vanderplank 2 Kay. & Jo. 1.

Roberts v. Tunstall 4 Har. 257.

Reimers v. DruceENR 23 Beav. 145.

Middleton v. SherburneENR 4 Y. & C., Ex., 358.

Tatham v. Wright 2 R. & M. 1.

Hovenden v. Annesley 2 S. & L. 607.

Middleton v. Sherburne 4 Y. & C. C. 358.

Lorton v. KingstonENR 5 Cl. & Fin. 269.

In Tucker v. SangerENR M'Cl. 424.

Man V. RickettsENR 7 Beav. 93.

Levy v. LevyUNK 3 Mad. 245.

1863. Chancery. METCALFE V. RYVES. Judgment. 564 CHANCERY REPORTS. the tenant's expenditure, but allowed him to go on laying out large sums upon the property for all that time. That argument however admits of this answer, that the petitioners are mere annuitants ; that they had no estate in the lands, and no power to interfere. All they had to do was to receive the rent payable in part discharge of their annuity. There can be no question respecting a purchase for value without notice, as there is no legal estate in the reÂÂspondents. On the whole case, I see no ground for refusing the relief in this suit, which seeks to have this lease charged with these annuities, or so much of them as the other properties are unable to produce. It seems to me that the account, as against the lessees, ought not to go beyond the year 1861, the date of the termination of the lease of 1762. The costs must follow the result on the whole of the case. General Hearing Book, 30, f. 366. June 1, 2, 3, 4, 5, 6, 8. E., seised of THIS case came before the Court upon a cause petition, filed the lands subject to mortgages, 17th day of January 1861, which stated the following case :ÂÂdevised them to T., in whom Henry Frederick John James Perceval, afterwards fifth Earl of the mortgages became vested. Egmont, attained his majority in the year 1817, and was the only -Held, that the Court had child of John Viscount Perceval, who was the only child of John jurisdiction in a suit insti- James third Earl of Egmont. John Viscount Perceval had not, for tilted by the many years before 1817, been on good terms with his father • and heir of E., praying the was, in 1817, very deeply in debt. Soon after the said Henry ordinary re- demption relief F. J. J. Perceval came of age, he was induced to become responsible and an issue devisavit vel non, to grant such an issue. CHANCERY REPORTS. 565 for his father's debts ; and accordingly, as surety for his father, made himself liable for a sum of about 200,000. John James third Earl of Egmont died in February 1822 ; and thereupon Viscount Perceval became fourth Earl of Egmont, and entitled in possession to very large estates in the county of Somerset and in the county of Cork. Previously to his accession to the title, the fourth Earl had borrowed money of Edward Tierney, a practising solicitor in Dublin, and of his brother Sir Matthew John Tierney, a physician practising in London ; and, shortly after he became Earl of Egmont, he began to employ the said Edward Tierney as his solicitor, confidential adviser, and general agent in Ireland, and continued so to employ him till the time of his death. Upon Earl John's accession to the title, his creditors becami pressing, and in many instances sued him and his son (as his surety), and recovered judgments against both of them. In order to make provision for these debts, Earl John, by deeds, dated the 2nd November 1824, conveyed the English and Irish estates to Viscount Perceval, J. G. Teed, Esq., and Edward Tierney, upon trusts for the payment of his creditors; and subject thereto, as to the English estates, in trust as the said Lord Egmont and Lord Perceval should jointly appoint ; and subject thereto, in trust for the said Lord Egmont for life ; with remainder subject to a jointure annuity of 1000 a-year to the Countess during her life ; in trust for the said Lord Perceval in tail ; with remainder to the said Lord Egmont in fee-simple. And, as to the Irish estates, to pay certain annuities, therein mentioned ; subject thereto, to pay any other debts of the said Lord Egmont's which they might think fit to pay thereout ; and subject thereto, upon trusts corresponding to those of the English estates. Difficulty arose in carrying into execution the trusts of the deeds of 1824, and a suit was instituted in England, by a creditor entitled to the benefit of the trusts ; and by a decree, dated the 14th May 1830, accounts were directed of the trust estates. By an order of the English Court of Chancery, made in a suit of Wain v. Egmont, on the 15th of January 1833, the said John 566 CHANCERY REPORTS. Godfrey Teed vested the said trust premises in the said Viscount Perceval and Edward Tierney, on the trusts of those deeds. The English estates were sold, and produced, in round numbers, 150,000; and out of this sum all the charges on the English estates were satisfied or provided for, and eleven shillings and sixÂÂpence in the pound was paid to the creditors entitled to the benefit of the trust deeds. John Earl of Egmont died on the 31st of December 1835 ; and thereupon his son, the said Henry Frederick John James, hereafter called Earl Henry, became fifth Earl of Egmont. In order to obviate the necessity of selling the Irish estates, which the said Edward Tierney, who was alleged to be in fact the sole acting trustee, wished to avoid, it was proposed to raise, by mortÂÂgage of those estates, a sufficient sum to satisfy so much of the debts as was still unpaid ; and accordingly, by indentures, dated respectively the 6th and 7th of November 1836, certain parts of the said Irish estates were conveyed unto and to the use of Abraham Wildey Robarts, by way of mortgage, to secure 14,000 and inÂÂterest; and by other indentures, dated respectively the 7th and 8th days of November 1836, other large portions of the said Irish estates were conveyed unto and to the use of A. W. Robarts, G. W. PresÂÂcott, H. Combe, and Sir J. Flower, by way of mortgage, to secure 30,000 and interest ; and by other indentures, dated respectively the 8th and 9th of November 1836, all the Earl's Irish estates, whatsoever and wheresoever, were (subject as to the parts thereof comprised in the said mortgages for 30,000 and 14,000 to the said mortgagees respectively) conveyed to and for the use of Sir Matthew John Tierney, by way of mortgage, to secure 40,000 and interest: and a further sum of 4000 was subsequently charged on the estates comprised in the said last-stated indentures, in favor of the said Sir Matthew John Tierney, by a deed executed by said Earl Henry, and dated the 10th November 1836. By means of the money so raised, all the creditors under the said trust deeds were fully satisfied and the trusts put an end to ; and the Irish estates then remained free of all charges, except these mortgages, and except also a sum of 7000, the amount of an old family charge, CHANCERY REPORTS. 567 which had become vested in the said Sir Matthew John Tierney, and which was paramount to all the other charges. The amount due on these estates was therefore 101,000, and the nature of the arrangements was such as to make a very large portion, if not the whole of this sum, the personal debt of the fifth Earl. Earl Henry had for a short time sat in the House of Commons, as Viscount Perceval ; but the liability to imprisonment which he had incurred, by joining in giving security for his father's debts, had been made use of, when a dissolution took place (in 1826), to prevent his being elected a second time, and he had been, as he had also preÂÂviously been before his father became Earl of Egmont, compelled to leave England, for the purpose of preserving his personal liberty. These circumstances greatly vexed and disgusted him ; and, partly in consequence of the feeling which they created, and partly from want of means, and apprehension of arrest, he, from the time of his first leaving England to that of his father's death, lived in obscurity, and in fact in concealment ; and, dropping his own name and title, he assumed the name of Lovell, for which, on the rare occasions of his visiting his father, he substituted that of Teed, as less likely to create suspicion. His time was passed principally, and in fact almost entirely, on the Continent, where he mixed with no society of his own station, and held no communication with any member of his family except his father ; and during the years which so passed he lost interest in politics and habits of business, and acquired habits of intemperance, from which he never afterwards freed himself. During the whole of that time the said Edward Tierney had conÂÂtinued to act as agent and receiver of the Egmont estates in Ireland, and as confidential solicitor and adviser of Earl John, and was in the secret of the concealment of Earl Henry ; and such money as the...