Tighe v Dolphin

• Jurisdiction: Ireland
• Judge: M. R.
• Judgment Date: 13 December 1905
• Court: Chancery Division (Ireland)
• Docket Number: (1905. No. 148.)
• Date: 13 December 1905

Tighe

and

Dolphin.

M. R.

(1905. No. 148.)

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.

1906.

Mortgage — Marriage settlement — Representation that lands are unincumbered — Contribution to charge — Right of settled lands to indemnity — Purchaser for value of unsettled lands — Marshalling.

Held, that the purchased estate was bound to indemnify the settled estate from the mortgage debt.

Averall v. Wade (Ll. & G. 252, temp. Sugden) followed. Barnes v. Racster (1 Y. & C. C. C. 401) explained and distinguished.

Trial of Action.

This action was brought to have it declared that the lands of Benbeg, in the barony of Loughrea and County of Galway, were liable to indemnify the lands of Danesfort, situate in the same barony and county, against all principal and interest due on foot of a mortgage of July 15th, 1858, made between Peter Hubert Dolphin of the one part, and Peter Paul Daly and Christopher M'Evoy of the other part. The facts of the case, so far as material, were as follows:—

Christopher M'Evoy and Peter Paul Daly, the mortgagees, were the trustees of the marriage settlement of Peter Hubert Dolphin, the mortgagor, which was executed on January 28th, 1852. This settlement contained a power to invest the trust funds (£2000 secured by mortgage and £2000 3 per cent. bank annuities) upon (amongst other investments) mortgage of real estate in Ireland. These funds were settled upon the usual trusts, and Peter Hubert Dolphin and his wife, or the survivor, had power to appoint to the children of the marriage. At the date of this settlement Peter Hubert Dolphin was owner in fee-simple of the lands of Danesfort in the barony of Loughrea and County of Galway. Part of the lands were subject to a life interest of the mother of Peter Hubert Dolphin, which had long since ceased. In the year 1858 Peter Hubert Dolphin purchased in the Landed Estates Court, Ireland, certain lands in the same barony known as Benbeg, and also the lands of Cross, in the barony of Kilconnell and County of Galway. To enable him to do so, he borrowed £3620 from the trustees of his marriage settlement out of the trust funds, and by mortgage of July 15th, 1858, granted the lands of Danesfort, Benbeg, and Cross to the trustees to secure repayment of the said sum of £3620, with interest at 4 per cent.

There were four children of the marriage, daughters, namely, Marie Antoinette Dolphin, now wife of the plaintiff Thomas Tighe, Georgina Dolphin, now Georgina Egan, wife of Laurence M. Egan, and Annie Dolphin, and Mary Teresa Dolphin, who were not married.

In the year 1875, a marriage between the plaintiff and Marie Antoinette Dolphin was in contemplation, and upon treaty for the marriage, Peter Hubert Dolphin, through his solicitor, sent to the plaintiff's solicitor a proposal as to the settlement he intended to make on his daughter, which proposal stated the lands of Danesfort to be free from incumbrances. Certain alterations in the proposal were made and agreed to on the part of the plaintiff and Peter Hubert Dolphin, and as so altered the proposal was as follows:— “Mr. Dolphin proposes to give his daughter on her marriage a sum of £2000 in cash, and to settle the reversion of his estate called Danesfort, held by him in fee. The lands, which are free from incumbrances, are to be settled on Peter Hubert Dolphin for life, remainder to Mrs. Dolphin, his wife, for her life, remainder to Mr. Tighe and his wife for their joint lives, and the life of the survivor, remainder to the use of the second or other younger sons of the said intended marriage in tail male, and, if no younger sons, the lands to go to the eldest son; the second or other sons (except the eldest) to take the name of Dolphin upon inheriting the estate. If no male issue, the lands to go to the first and other daughters of the marriage, and their issue in tail male, they also taking the name of Dolphin. Power to be reserved to Mr. Dolphin to charge the lands, either by deed or will, with a sum of £2000 for any purpose he shall think proper.”

It was subsequently agreed that successive life estates should be settled on the plaintiff and his wife, instead of the estate for their joint lives, and the life of the survivor; but no alteration to that effect was made in the proposal.

The statement of claim, from which the above statement of facts is taken, alleged that Peter Hubert Dolphin repeatedly urged upon the plaintiff the value of the lands of Danesfort, as lands free from incumbrances, and insisted that the plaintiff should, on his part, settle on his intended wife and children some valuable fee-simple properties which he possessed, and that the plaintiff, believing and acting on the statement that Danesfort was free from incumbrances, agreed to do so, and, as the plaintiff believes, heads of settlement of his property were submitted to the solicitor of Peter Hubert Dolphin, and were approved of, but the plaintiff was unable to find any written heads of settlement, though he recollected discussing terms with Peter Hubert Dolphin and his legal advisers, and it was arranged that the settlement, as agreed on, should be executed, and the marriage took place.

Accordingly, by indenture, dated 28th April, 1875, and made between the plaintiff of the first part, Marie Antoinette Dolphin of the second part, Peter Hubert Dolphin of the third part, Oliver Dolphin and James Winslowe Tighe of the fourth part, and Walter Joyce and Henry de Blaquiere of the fifth part, the plaintiff put in settlement for the benefit of his intended wife and children of the marriage various properties of large value of which he was the owner, and Peter Hubert Dolphin, after reciting that he was seised in fee of the lands of Danesfort, and reciting the treaty for the marriage, granted the lands of Danesfort to Walter Joyce and Henry de Blaquiere, in trust for himself for life, with remainder to Mrs. Dolphin for life, with remainder to the plaintiff for life, with remainder to Marie Antoinette Dolphin for life, with remainder to the second and every other son of the plaintiff (not being an eldest son entitled to the estates put in settlement by the plaintiff) according to seniority in tail male, and the indenture contained a proviso that the second or other younger son of the plaintiff should, within one year from becoming entitled in possession to the lands of Danesfort, take the name and arms of Dolphin, and Peter Hubert Dolphin was empowered by the said indenture to charge the lands of Danesfort by deed or will with a sum of £2000, which power he never exercised.

By deed of April 29th, 1879, made between Christopher M'Evoy and Peter Paul Daly of the one part, and Peter Hubert Dolphin of the other part, the lands of Cross were released from the mortgage of July 15th, 1858, and part of the said lands were afterwards sold by Peter Hubert Dolphin. The statement of claim then alleged that the plaintiff was, until very recently, and after the death of Mrs. Dolphin, entirely ignorant of the existence of the mortgage of July 15th, 1858, or the release of April 29th, 1879, and believed the lands of Danesfort to be unincumbered, as Peter Hubert Dolphin had represented them to be.

On April 9th, 1890, Georgina Dolphin married Laurence M. Egan, and by settlement of that date made between Peter Hubert Dolphin of the first part, Georgina Dolphin of the second part, Laurence M. Egan of the third part, and the plaintiff and Martin J. Comyns of the fourth part, certain property of Georgina Dolphin was assigned to the plaintiff and Martin J. Comyns upon trust for her benefit, and that of her intended husband, and the issue of the marriage. The settlement contained a covenant for the settlement of any after acquired property of Georgina Egan. There were seven children of the marriage. Martin J. Comyns died in January, 1905, and no trustee was appointed in his place.

Peter Hubert Dolphin by his will, dated January 7th, 1897, left his property called Cross to his daughter Mary Teresa and to her children, and in default of issue to Mrs. Tighe and Mrs. Egan and their children. He left to his wife his properties called Benbeg and Danesfort for her life, and everything else real and personal that he might die possessed of, binding her at the same time to pay his debts. He appointed the plaintiff Thomas Tighe and Laurence M. Egan his executors. He died on July 7th, 1898, and his will was proved on November 2nd, 1898, by his executors.

By deed of July 26th, 1898, Mrs. Dolphin conveyed to her daughters Annie Dolphin, Mary Teresa Dolphin, and Georgina Egan, as tenants in common, the lands of Benbeg and other property in consideration of their covenanting to pay to the National Bank the sum of £2300, due by the personal representatives of Peter Hubert Dolphin to the Bank. This sum was subsequently paid by them to the Bank. The deed contained limitations over of the property in the event of Annie and Mary Teresa Dolphin dying without issue, which are not material. On November 30th, 1898, Mrs. Dolphin, in exercise of the power of appointment conferred on her by the settlement of January 28th, 1852, appointed the sum of £3620, stated to be outstanding on mortgage on the lands of Benbeg and Cross, to Georgina Egan, Annie Dolphin, and Mary Teresa Dolphin, in equal shares, and released her life interest therein. She died on March 26th, 1904.

On February 10th, 1905, this action was commenced by the plaintiff, claiming to have the settled lands indemnified against the mortgage debt, not only by the lands of Benbeg...