Thr Estate of Richard F. Morrison, Owner; Evory Kennedy, Petitioner; Continued in the Name of Richard Hobart Morrison, as Devisee and Legatee for Life Under The Will of The Said Richard F. Morrison, as Owner

• Jurisdiction: Ireland
• Judgment Date: 30 November 1906
• Date: 30 November 1906
• Court: Court of Appeal (Ireland)

In the Matter of the Estate of Richard F. Morrison,

Owner;

Evory Kennedy,

Petitioner;

continued in the name of Richard Hobart Morrison, as Devisee and Legatee for Life under the Will of the said Richard F. Morrison,

As Owner (1).

Appeal.

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.

1907.

Landed Estates Court — Absolute order for sale — Incumbrances created by owner after order for sale — Statute of Limitations.

Where, subsequent to the date of an absolute order for sale, made on an incumbrancer's petition, the owner creates a valid incumbrance on the lands ordered to be sold, such incumbrance is protected by the absolute order for sale against the operation of the Statute of Limitations.

In re Colclough's Estate (8 Ir. Ch. R. 330) and In re Nixon's Estate (Ir. R. 9 Eq. 7) considered. In re Swanton's Estate ([1898] 1 Ir. R. 157) followed.

On the 13th November, 1876, a petition for sale of the estate of Richard Fielding Morrison, comprising extensive house property in the city of Dublin, was filed in the Land Judge's Court by Evory Kennedy, an incumbrancer on the said estate. A conditional order for sale of the said estate was made on the 6th December, 1876, and the said order was made absolute on the 2nd March, 1877. An abstract of title to the property was lodged on the 11th December, 1877, and the Judge's rulings thereon were issued on the 15th December, but the sale of the estate was not carried out.

By an indenture of mortgage, dated the 23rd September, 1880, the said Richard Fielding Morrison conveyed the premises comprised in the absolute order for sale to James M'Donald and Michael M'Donald, for the term of 999 years, to secure the sum of £220 9s., with interest thereon at 5 per cent. per annum. The said James M'Donald and Michael M'Donald carried on business in partnership, and the sum secured by the said mortgage was a

partnership debt due to them. The said Michael M'Donald died on the 5th March, 1899, and letters of administration of his estate were granted to the said James M'Donald. The said James M'Donald filed a petition in Bankruptcy for the purpose of effecting an arrangement with his creditors on the 23rd February, 1905, and, on the 27th April, 1906, the petition of the said James M'Donald to vest all his estate in the official assignees for realization was assented to by the creditors, and was duly confirmed by the Court on the 15th May, 1906. Liberty to intervene in this petition was, on the 8th May, 1906, given to Alexander Knox M'Entire, one of the said official assignees, for the purpose of recovering the amount due on foot of the said mortgage, dated the 23rd September, 1880.

On the 12th January, 1884, one George Burgess obtained a judgment in the Queen's Bench Division of the High Court of Justice in Ireland against the said Richard Fielding Morrison for the sum of £196 2s. 8d. and £5 6s., making together £201 8s. 8d., which judgment was, on the 26th January, 1884, registered as a mortgage against (inter alia) the premises comprised in the absolute order for sale in this petition.

By an order of Mr. Justice Ross, dated the 6th June, 1906, it was (inter alia) directed that the title of this matter should be amended by continuing the proceedings in the name of the said Richard Hobart Morrison, as devisee and legatee for life under the will of the said R. F. Morrison, deceased, as owner, that the carriage of...