Walker v Lord Lorton

• Jurisdiction: Ireland
• Judgment Date: 15 April 1857
• Date: 15 April 1857
• Court: Rolls Court (Ireland)

Rolls.

WALKER

and

LORD LORTON.

Bain v. Whitehaven Railway CompanyENR 3 H. L. C. 1.

Nelson v. BridfortENR 6 Beav. 547.

Waterhouse v. StansfieldENR 9 Hare, 234.

Yates v. ThompsonENR 3 Cl. & Fin 544.

Duncan v. CampbellENR 12 Sim. 416.

Murray v. MurrayENR 7 Cl. & Fin 842.

Munro v. DouglasUNK 5 Mad. 379.

Ross v. Ross 4 Wills. & Sh. 189.

Warrender v. WarrenderENR 1 Cl. & Fin. 488.

Tidd v. Lister 3 De G., M'N. & G. 874.

Railway CompanyENR 3 H. L. C. 1.

Yates v. ThompsonENR 3 Cl. & Fin. 544.

Phipps v. The Marquis of AngleseaENR 1 P. Wms. 696.

Walis v. BrightwellENR 2 P. Wms. 88.

Stapelton v. ConwayENR 3 Atk. 726; S. C., 1 Ves. 427.

Robinson v. BlandUNK 1 Wm. Bl. 256.

Rothschild v. Currie 1 Q. B. 43, 49.

Birtwhistle v. VardillENR 7 Cl. & Fin. 895.

Fergusson v. FyffeENR 8 Cl. & Fin. 121, 140.

De la Vega v. ViannaENR 1 B. & Ad. 284.

Lansdowne v. Lansdowne 2 Bli., O., S., 60.

Noel v. RochfortENR 10 Bli. 483.

Williams v. GooldENR 1 Bing. 316.

Ferguson v. Lomax 2 Dr. & War. 120. S. C. at Law, 5 Ir. Law Rep. 81.

v. Goold 1 Moll. 212.

Buccleugh v. HoareUNK 4 Mad. 467.

Magennis v. England 2 H. & Br. 577.

Lanenville v. AndersonUNK 17 Jur. 511.

Forbes v. ForbesUNK 18 Jur. 642.

Huber v. SteiinerENR 2 Bing. N. C. 210.

Dewar v. SpanENR 3 T. R. 425.

Stapelton v. Conway 1 Ves. 427.

Connor v. The Earl of BellamontENR 2 Atk. 382.

Ranelagh v. ChampartENR 2 Vern. 39.

Neale v. RobertENR 3 Esp. 163.

Robinson v. Bland 1 W. Bl. 259.

Tidd v. Lister 3 De G., M'N. & Gor. 874.

Collins v. Blantern 2 Wils. 351.

Norton v. SymsENR Hob. 14.

Newman v. Newman 4 M. & Sel. 68.

Doe v. PitcherENR 6 Taunt. 369.

Kerrison v. ColeENR 8 East, 231.

Monys v. LeakeENR 8 T. R. 411.

Harrison v. HannelENR 5 Taunt. 780.

Head v. BaldyENR 6 Ad. & E. 459.

Chater v. BecketENR 7 T. R. 701.

Warrender v. WarrenderENR 2 Cl. & Fin. 488.

Curtis v. Hutton 14 Ves. 537.

Brodie v. Barry 2 Ves. & B. 127.

Scott v. Allnut 2 Dow. & Cl. 404.

Drummond v. Drummond 6 Br. P. C. 601.

Tidd v. Lister Ubi sup.

Kerrison v. Cole Ubi sup.

Doe v. Pitcher Ubi sup.

Ferguson v. Lomax 2 Dru. & War. 120.

Somerville v. Somerville 5 Ves. 787.

Munro v. MunroENR 7 Cl. & Fin. 876.

Tidd v. Lister 3 De G., M'N. & G. 874.

CHANCERY REPORTS. 329 WALKER v. LORD LORTON. Jan.24,27, 29. April 15. Held, that though the annuity was void, the covenant to pay the 10,000 was not necessarily void, and might be enforced. The mere fact of an annuity being charged on lands in Ireland does not take it out of the operation of the Annuity Act. 330 CHANCERY REPORTS. 3000, and the respondent Lord Lorton appealed from that portion of it which declared the 10,000 well charged on the lands. The provisions of the deed and the circumstances and residence of the parties to it, at the time of its execution, are fully stated in the judgment of the MASTER OF THE ROLLS. Mr. F. Fitzgerald, for the petitioners. The contract which was carried into execution by the deed of the 1st of June 1848 was a contract for the sale of a rentcharge to be secured on lands in Ireland. It related entirely to real estate in Ireland, and was therefore an Irish contract, to be regulated by the lex loci rei sitce, and is to be construed irrespectively of the domicile of the contracting parties or the place of the execution of the instrument. The covenant to pay cannot alter the nature of the transaction, for it was merely subsidiary to the grant of the rentcharge. If the rentcharge- failed, the covenant to pay it would be unavailable: Bain v. Whitehaven Railway Company (a); Nelson v. Bridfort (b); Waterhouse v. Stansfield (c); Yates v. Thompson (d); Duncan v. Campbell (e). The case is like that of a mortgage executed in England, of lands in Ireland. In such a case, it is plain, the contract would be an Irish contract, as relating to lands in Ireland; the covenant to pay the mortgage money would be subsidiary. But suppose the domicile of the grantor to be material, Lord Lorton's domicile of origin was Ireland. He is described in the deed as of Rockingham, in Ireland; and although temporarily resident abroad, he had no intention to fix his reÂÂsidence permanently in England or abroad. The domicile of origin continues until a new domicile is acquired, or an intention is manifested to abandon it : Murray v. Murray (f) ; Munro v. Douglas (g); Ross v. Ross (h), referred to in 7 Cl. 6. Fin., p. 876 ; Warrender v. Warrender (i). As to the 10,000, (a) 3 11. L. C. 1. (c) 9 Hare, 234. (e) 12 Sim. 416. (g) 5 Mad. 379. (b) 6 Beay. 547. (d) 3 Cl. & Fin. 544. (f) 7 CL & Fin. 842. (h) 4 & Sh. 189. (i) 1 CL & Fin. 488. CHANCERY REPORTS. 331 the subject of the cross appeal, which the Master has declared to be well charged on the lands, that was secured by a conÂÂtract independently of the annuity ; and though the deed should be void, as regards the annuity, it is valid as to the 10,000. The object of the 53 G. 3, c. 141, was to prevent the sale of annuities such as those contemplated by the Legislature, and it was intended to avoid the deeds only so far as they operated as grants of annuities: Tidd v. Lister (a). Mr. Brewster and Mr. T. Lefroy, for Lord Lorton. Lord Lorton, at the time of the execution of the deed, had no residence in Ireland ; he resided at Brussels. The grantee reÂÂsided in England. The deed was drawn in England, on English stamps, and executed in England. The annuity was to be paid at the dining-hall of Lincoln's Inn. It is, therefore, an English conÂÂtract, and void under the 53 G. 3, c. 141 : Bain v. Whitehaven Railway Company (b); Yates v. Thompson (c); Phipps v. The Marquis of Anglesea (d) ; Wallis v. Brightwell (e); Stapelton v. Conway (f); Robinson v. Bland (g); Rothschild v. Currie (h); Birtwhistle v. Vardill (i) ; Fergusson v. Fyffe (k); De la Vega v. Vianna (1); Lansdowne v. Lansdowne (m) ; Noel v. Rochfort (n). If the rentcharge were valid, irrespectively of the personal covenant, the grantee might have a writ of annuity : Lit., ss. 219, 220 ; which he plainly cannot have, because the annuity is avoided by the statute : Williams v. Goold (o); Ferguson v. Lomax (p) ; Richards (a) 3 De G., 21'N. & G. 874. (b) 3 H. L. C. 1. (c) 3 C1.g& Fin. 544. (d) 1 P. Wins. 696. (e) 2 P. Wins. 88. ( f) 3 Atk. 726; S. C., 1 Ves. 427. (g) 1 Wm. Bl. 256. (h) 1 Q. B. 43, 49. (i) 7 Cl. & Fin. 895. (k) 8 Cl. & Fin. 121, 140. (1) 1 B. & Ad. 284. (m) 2 Bli., 0., S., 60. (n) 10 Bli. 483. (o) I Bing. 316. (p) 2 Dr. & War. 120; S. C. at Law, 51r. Law Rep. 81. 332 CHANCERY REPORTS. v. Goold (a) ; Buceleugh v. Hoare (b) ; Magennis v. England (e) ; Lanenville v. Anderson (d); Forbes v. Forbes (e). Mr. Robert R. Warren, on the same side. The case falls within the Annuity Act, 53 G. 3, c. 141. This is a personal contract, and is to be construed according to the law of the place where it is entered into. The lex fori has nothing to do with the construction of it : Huber v. Steiiner (f). It is plain, from the 10th section of the Act, that the circumstance that an annuity is charged on lands in Ireland was not in the contemplaÂÂtion of the Legislature, to exempt it from the operation of the Act. The contract is recited in the deed to be a personal contract, with a real security. The annuity was not an immoveable but a moveÂÂable thing : 2 Burge. Com. p. 40. The closest analogy to the case of an annuity charged on lands is an ordinary mortgage transaction. The validity of a mortgage transaction is regulated not by the law of domicile, nor by the law of the country where the lands are situate, but by the law of the country where the contract is entered into. That is proved by the Usury Laws. The English statute against usury, 12 Anne, s. 2, c. 16, applied to a mortgage of Irish property ; and accordingly, the 14 G. 3, c. 79, s. 5 (Eng.), proÂÂvided that a deed of mortgage, executed in England, of lands in Ireland or the Colonies, should not be void by reason of usury: Dewar v. Span (g); Stapelton v. Conway (h); Connor v. The Earl of Bellamont (i); Ranelagh v. Champart (k). The general rule is, that the law of the country where it is made is to be conÂÂsidered, in expounding the contract. It is thus laid down by Lord Eldon in Neale v. Roberts (1), " The law of the country where the contract arose must govern the contract." That rule is subject to this exception, laid down by Lord Mansfield, in Robinson v. Bland (m); viz., where the parties at the time of (a) 1 Moll. 212. (b) 4 Mad. 467. (c) 213. & Br. 577. (d) 17 Jur. 511. (e) 18 Jur. 642, (f) 2 Bing. N. C. 210. (y) 3 T. R. 425. (h) 1 Ves. 427. (i) 2 Atk. 382. (k) 2 Vern. 39. (1) 3 Esp. 163. (m) 1 W. Bl. 259. CHANCERY REPORTS. 333 Mailing the contract had a view to a different kingdom; for con- 1857 itolls. tracts are to be considered according to the place where they are WA] ER to be executed. Naming the place of performance is conclusive as v. to the law by which the contract is to be construed : in this case, LOUT ON. Lincoln's Inn Hall is named as the place of performance. Argument. The effect of the Annuity Act was to avoid the deed, not only so far as it granted or secured the annuity, but also as regards the charge of 10,000. The contract was that Walker should advance 8000, that Lord Lorton should pay an annuity of 3000 a-year, redeemable as therein mentioned, and should also pay 10,000. The contract is, by the terms of the deed, made one and indivisible ; and that distinguishes the case from Tidd v. Lister (a). There is a distinction between contracts which are void at Common Law, and those which are made void by statute. In Collins v. Blantern. (b), Chief Justice Wilmot says :- " There has been a distinction mentioned between a bond being void by statute and at Common Law ; and it is said that in the first case, if it be bad or void in any part, it is bad in. toto ; but that at the Common Law it may be void in part, and good in part ; but this proves nothing in the present case. The Judges formerly thought an Act of Parliament might be eluded if they did...