Thompson v Hurley

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 17 May 1905
• Court: Chancery Division (Ireland)
• Docket Number: (1887. No. 9039.)
• Date: 17 May 1905

Thompson

and

Hurly.

M. R.

(1887. No. 9039.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1905.

Statute of Limitations — Administration of real and personal estate — Claim upon covenant in mortgage deed — Amount of interest recoverable — 3 & 4 Wm. 4, c. 27, s. 42 — 37 & 38 Vict. c. 57, s. 8.

In 1858 A borrowed a sum of money from the trustees of a settlement on the security of a charge on the lands of X. A having died in 1887, a decree for the administration of his real and personal estate was made in an action brought by B, his executrix, against C, his eldest son and one of his next-of-kin. No claim was made by the mortgagees in the action, which, by consent, was not proceeded with.

Interest on the mortgage debt was paid out of the lands of X down to 1895 by B, who died in 1892, and afterwards by C, who was executor of B and owner of the charge.

The lands having proved insufficient to pay the interest, application to revive the action was made by the trustees of the settlement, in order to prove for principal and interest under the covenant. C, the defendant, objected that the claim was barred by the Statute of Limitations:—

Held, that, although the decree did not prevent the statute from running, the payment of interest kept the debt alive; but that only six years' arrears of interest was recoverable, it being a sum of money chargeable upon land within 3 & 4 Wm. 4, c. 27, s. 42. An order was accordingly made to continue the proceedings in the name of C, executor of B, as plaintiff, and of the trustees as co-defendants with the defendant C.

Motion.

This was an application on behalf of William Rowan and William Ruby Heffernan, creditors of John Hurly, deceased, whose estate had been the subject of an administration decree in this Court, for liberty to continue the proceedings with a view of proving against his real and personal estate on the covenant in a mortgage.

The following statement of facts is taken from the judgment of the Master of the Rolls:—

This case came before the Court in the form of a motion by William Rowan and the Rev. William Ruby Heffernan, to revive the action and continue the proceedings; but on the hearing of the application it appeared that there was a substantial question of law to be decided, and both parties, the applicants and the defendants, agreed, and the Court was asked by them, to decide the question before making an order on the motion.

The action was for the administration of the real and personal estate of John Hurly. The plaintiff was Lucy Anne Thompson, and the defendant John Charles Denis Hurly. The proceedings came to an end before the death of the plaintiff, Miss Thompson, by a consent which was entered into. Nothing has been done since, and the suit has abated by her death. The applicants claim to be creditors of John Hurly under a mortgage made by John Hurly of May 19th, 1858, to secure the repayment of certain trust moneys advanced to him by the then trustees of a settlement of April 11th, 1836, executed on the marriage of John Collis with Melicent Agnes Blennerhassett. The parties to the settlement were Thomas Collis, of the first part; John Collis, his son, of the second part; Edward Collis, of the third part; Rowland Blennerhassett, of the fourth part; Melicent Agnes Blennerhassett, of the fifth part; and the Rev. Robert Conway Hurly and John Hurly Blennerhassett, of the sixth part. It was thereby agreed and declared that the Rev. Robert Conway Hurly and John Hurly Blennerhassett should stand possessed of the sum of £2500 and the securities for the same assigned and transferred to them, as was therein mentioned, upon the trusts therein set forth; and the said John Collis was empowered to appoint the said sum of £2500 amongst the younger children of the marriage, subject to the payment of the interest of the said sum to the said John Collis during his life. By deed of April 1st, 1850, made between the said John Collis, of the one part, and Richard Francis Blennerhassett and Rowland Tallis Eagar, of the other part, the said Richard Francis Blennerhassett and Rowland Tallis Eagar were appointed new trustees of the settlement of 1836, pursuant to the power therein contained, and the £2500 was vested in them. By order in Chancery of May 8th, 1855, the Rev. John Kerin was appointed a trustee of the settlement in the place of Rowland Tallis Eagar, removed by order in Chancery of February 15th, 1845. By deed of May 8th, 1855, made between John Collis, of the one part, and Robert Conway Hurly and the Rev. John Kerin, of the other part, Robert Conway Hurly was appointed a trustee of the settlement in the place of Richard Francis Blennerhassett, and the trust funds, then consisting of the sums of £1607 13s. 4d. and £1001 10s. 9d., were transferred to Kerin and Hurly as such trustees.

Then came the transaction in question, on which the present claim arises. By mortgage of May 19th, 1858, John Hurly, the testator in this action, assigned to Robert Conway Hurly and John Kerin (the trustees of the settlement), their executors, administrators, and assigns, a...