Walcott v Condon

• Jurisdiction: Ireland
• Judgment Date: 28 April 1853
• Date: 28 April 1853
• Court: High Court of Chancery (Ireland)

Chancery.

WALCOTT

and

CONDON.

Watts v. Symes 1De Gex, Mac. & Gor. 240.

M'Kenzie v. Gordon 6 Cl. & F. 875.

Toulmin v. SteereENR 3 Mer. 210.

Parry v. WrightENRENR 1 Sim. & St. 369; affirmed on appeal, 5 Russ. 142.

Medley v. HortonENR 14 Sim. 226.

Drew v. Lord NorburyENR 3 Jo.l & Lat. 267.

Blake v. D'ArcyENR S. & Sc. 493.

Knox v. Kelly 1 Dra. & Wal. 542.

Hickson v. CollisENRUNK 1 Jo. & Lat. 94; S. C. 6 Ir. Eq. Rep. 524.

Geraghty v. Abbott 8 Ir. Law Rep. 60.

Colyer v. Marnell 10 Ir. Law Rep. 353.

Barrett v. Merrick 2 Jones, Exch. Rep., 193.

Beere v. HeadUNKENR 8 Ir. Eq. Rep. 647; 9 Ibid, 76; S. C. 3 Jo. & Lat. 340.

Carroll v. D'ArcyUNK 10 Ir. Eq. Rep. 321.

O'Kelly v. BodkinUNK 2 Ir. Eq. Rep. 361.

Trye v. The Earl of Adlborough 1 Ir. Chan. Rep. 666.

Bishop of Winchester v. Paine 11 Ves. 194.

L'Estrange v. Robinson 1 Hog. 202.

Joyce v. Joyce 3 Ir. Jur. 273.

Parry v. WrightENRENR 1 Sim. & St. 369; S. C. 5 Russ. 142.

Watts v. Symes 1 De Gex, M'N. & G. 240.

M'Kenzie v. GordonENR 6 Cl. & Fin. 875.

Colyer v. Marnell 10 Ir. Law Rep. 353.

CHANCERY REPORTS, BEING A SERIES OF CASES ARGUED AND DETERMINED, IN THE HIGH COURT OF CHANCERY WALCOTT v. CONDON. April 27, 28. Tins was a foreclosure suit : the ordinary decree to account had In 1820 Black acre and other been made in respect of the plaintiff's mortgage, bearing date on lands were mortgaged for the 30th of April 1825, and hereafter more particularly alluded to. £1200. The equity of re demption in Blackacre having subsequently devolved upon A, he mortgaged it in 1825 to the plaintiff. In 1830 A contracted with B, that on B's paying to the mortgagee of 1820 the sum of £565, then remaining due on that mortgage, an annuity of £66 per annum should be " effectually granted to B out of the mortÂgaged premises." B paid £565 to the mortgagee of 1820. By deed of the 7th of November 1830, to which the only parties were the mortgagee of 1820, and C, the brother of A, reciting that £1454 was due on the mortgage of 1820, the mortgagee, in consideration of £1281, expressed to be paid to him by C " and others for his use," conveyed Blackacre and the other mortgaged lands and the mortgage debt to C, his executors, administrators and assigns. By a deed, bearing date on the folÂlowing day, reciting the mortgage of 1820, and that C had become entitled to it, and that A had become entitled to " several parts of the mortgaged premises," and that A and C had agreed to grant an annuity out of those premises-they, iu consiÂderation of £565, expressed to be paid to them, granted the annuity of £66 to B out of the mortgaged premises, including Blackacre. Then followed a covenant by A to pay the annuity; and, as a further security for the annuity, A and C demised the premises for two hundred years to a trustee for B. Held-That as against the lands of Blackacre, the annuity was, to the extent of the sum due on the mortgage of 1820, prior to the plaintiff's mortgage of 1825. The cases of Toulmin v. Steere (3 Mer. 210) and Parry v. Wright (1 Sim. & Stu. 369 ; S. C. 5 Russ. 142) considered. Whether judgments entered within twenty years before the passing of the Re-dock- eting Act, 9 G. 4, c. 35, and not re-docketed within twenty years from their entry, or within five years from the passing of the Act, are void as against a purchaser (a mortgagee of 1825), who became such before the passing of the Act? Qucere. Held-That such judgments were void as against a sub-mortgage (made in 1841) of the mortgage of 1825. vol.. 3. 1 2 CHANCERY REPORTS. 1852. James Condon, sen., being seised of an estate for lives (with a Chancery. covenant for perpetual renewal), in the lands of Scart, by indenture WALCOTT of the 28th of December 1820, mortgaged them, together with other CONDON. lands, to John Gunn, for £1200. Statement. By indenture of the 15th of March 1825, Gunn transferred, assigned and conveyed that mortgage debt and the mortgaged lands to Delmege. The Master's report found that " several, payments were made to Delmege, in discharge of the principal, and in 1830 £565 alone remained due on foot of that mortgage ; that James Condon the younger had, on the death of the mortgagor, James Condon, sen., become entitled to his estate in the lands of Scart, and in October 1830 applied to David Ferguson the elder for the sum of £565 to be paid to Delmege, being the sum due on foot of the mortgage, in order that an annuity or rentcharge of £66. 7s. 9d. might be effectually granted to that David Ferguson, charged upon and payable out of all the said mortgaged premises, for the life of his son Robert Ferguson ; and that he David Ferguson, on the 8th of November 1830, paid to Delmege the sum of £565." To this part of the report exceptions were taken, on the ground that no evidence had been adduced to support it, but, not having been lodged within the time required by the General Order, were not permitted to be argued. The two following indentures were exeÂcuted upon the occasion referred to by the report. The first bore date on the 7th of November 1830, and was made between Delmege of the one part, and Richard Smith Condon* of the other part. It recited the mortgage of 1820, and the assignment of it by Gunn the mortgagee to Delmege in 1825 ; and that there was on the 29th of October 1829 due to Delmege £1412. 12s. 4d., Irish currency, for principal, interest and costs ; and a further sum of £41. 16s. 10d, like currency, accrued due for the interest on the balance then remaining due-making together £1454. 9s. 2d. And it witnessed that Delmege, " for and in consideration of the sum of £1281. 9s. 2d., Irish currency, making in British currency the sum of £1182. 16s. 2d. sterling, then and theretofore in hand paid to him by Richard Smith Condon and others, for his use and on his own * He was brother to James Condon, jun. account, in manner aforesaid, the receipt of which Delmege did thereby acknowledge," granted, bargained, sold, assigned, transferred and made over to Richard Smith Condon (in his actual possession then being, by virtue of a lease for a year) the lands of Scart and the other mortgaged lands, together with the said mortgage debt of £1200, and all interest due or to grow due thereupon, to hold to him Richard Smith Condon, his heirs, executors, administrators and assigns, subject to the condition of redemption in the mortÂgage deed of the 20th of December 1820. And Delmege coveÂnanted that he had not been otherwise paid the principal (£1200) or the sum due for interest and costs thereupon, nor any part thereof. The second deed bore date the 8th of November 1830, and was made between James Condon the younger and Richard Smith Condon of the first part, David Ferguson, sen., of the second part, and David Ferguson, jun., of the third part. It recited the mortgage of the 20th of December 1820, and that Richard Smith Condon, by mesne assignment, had become entitled to that mortgage and the mortgaged premises, subject to redemption, and that James Condon the younger had become entitled to the estate of James Condon the elder, deceased, in several parts of the mortgaged preÂmises." It next recited that James Condon the younger and Richard Smith Condon, for the considerations thereinafter mentioned, had " agreed to grant unto the said David Ferguson, sen., an annuity or yearly renteharge of £66. 7s. 9d., to be issuing and payable out of said several lands and premises." The deed then proceeded thus : " Now this indenture witnesseth, that the said James Condon the younger and Richard Smith Condon, for and in consideration of the sum of £565 sterling, now in hand paid to them by the said David Ferguson, sen., the receipt of which sum they the said James Condon the younger and R. S. Condon do, and each of them doth, hereby respectively acknowledge, they the said James Condon the, younger and R. S. Condon have, and each of them hath, according to their respective estates and interests therein, granted, bargained, sold, assigned, transferred and made over, and by these presents do, and each of them doth, grant, &c., &c., unto the said David Ferguson, his heirs and assigns, one annuity, clear yearly renteharge, or sum of £66. 7s. 9d., to be issuing out of, and charged and chargeable upon, and payable out of, all" the lands named in the mortgage of the 20th of December 1820, including the lands of Scart, to hold the annuity to him (David Ferguson, senior), his heirs and assigns, from the 29th of September then last, for the life of his son Robert Ferguson, then nineteen years of age. Then followed the usual power of distress, and a covenant by James Condon the younger to pay the annuity. The deed then proceeded thus :-" And this indenture further witnesseth, that for the considerations aforesaid, and for the more effectual securing the payment of the said annuity unto the said David Ferguson, sen., his heirs and assigns, for the term aforesaid, and in consideration of the sum of ten shillings, to the said James Condon the younger and Richard Smith Condon now in hand paid to them by the said David Ferguson, jun., the receipt whereof is hereby acknowledged, they the said James Condon the younger and R. S. Condon, according to their respective estates and interests therein, have, and each of them bath, granted...