COURT OF CHANCERY. Statute of Limitations-Pendency of Suit. These causes came before the court on a petition of rehearing from the decree of the Lords Commissioners. (Reported, 10 I. E. R. 589.) The facts so far as material to the view taken of the case by the Lord Chancellor, were as follows:-In July, 1811, Samuel Harden filed his bill for an account, foreclosure, and sale of the lands of Derrinboy, against G. Clarke, against whom a judgment now vested in S. M'Gloin had been recovered in Easter Term, 1809, prior to the mortgage on which the suit of Harden v. Clarke was founded. George Clarke was discharged as an insolvent debtor, and subsequently died. After various deaths and changes of interest, the bill in Bennett v. Bernard was filed, praying the account usual in an administration suit, and that it might be taken as a bill supplemental to Harden v. Clarke. In February, 1842, the second bill was filed, praying nearly similar relief. In 1844, a decree was made in these causes, referring it to the Master to take an account of incumbrances and to report priorities. The Master reported J. M. Gloin's judgment a charge on the land. To this the plaintiff excepted, insisting that it had been barred by the Statute of Limitations. The Lords Commissioners having overruled the exception, the plaintiff presented a petition of rehearing. That of Harden v. Clarke was not such as to give the William Smith appeared for a defendant in the same interest with the plaintiff, and cited Grenfell v. Girdleston (2 Y. & C. Ex. Cases, 662). Maley, for the judgment creditor, contended that the plaintiff who sought the benefit of the suit of 1811, could not repudiate it, and that the judgment creditor was entitled to the benefit of that suit-that if the suit is one in which the creditors can get relief, that is sufficient, and the court will presume that he lies by, and does not institute a suit himself, because he can get such relief under that which is pending. Bermingham v. Burke (9 Ir. Eq. 81); Barton v. Tattersall (1 Russ. & Mylne, 237). He cited It LORD CHANCELLOR-This case remains to be disposed of on one of the exceptions taken in respect of a judgment vested in a person named M'Gloin. That judgment appears by the report to have been obtained in Easter Term, 1809. Christian, Q.C., and Vincent Scully, for the has never been revived or redocketed, and there is plaintiff, contended that the judgment was barred nothing to take it out of the Statute of Limitaby the Statute of Limitations, and that there was tions if it be not supported by the pleadings in this no such pendency of suit as could prevent its ope- cause. I say in this cause, because, although there ration. They argued, first, that the suit of Harden was a good deal of argument before the Commisv. Clarke, in 1811, and all proceedings in it were, sioners founded on the reasoning, that in truth the by the events that happened, altogether annihilated; case then, and now at hearing is a recent one, and, secondly, that even if that were not so, that and not connected with the original suit, in the suit was not of such a character as to bring the case before me that point was not much pressed case within the doctrine of Sterndale v. Hankinson in argument; and I think it now admitted, that (1 Sim. 393). As to the first point, they said that whatever was the original suit, it is now brought in 1829 the judgment of 1809 was barred by the down before me. It appears that in 1811 that oristatute 8 Geo. I, c. 4; or, at all events, by the ginal suit commenced, but to it this judgment cre3 & 4 Wm. 4, c. 27-that to take it out of that ditor was not a party. The bill was filed by a position, the judgment creditor must shew that the mortgagee for foreclosing the interest pledged in decree of 1844, under which he proved his charge, mortgage to him. At that time the connusor of was a decree in the suit instituted before 1829. the judgment was alive, and he lived many years That there must be, in fact, a complete continuance afterwards, and that cause remained dormant of suit the mere pendency of a suit is not enough. till the deaths of the mortgagor and mortThat if a bill is filed for a demand before the sta-gagee. In the year 1841 proceedings were taken, tute attaches, and that bill is given up and another filed after the statute attaches, the demand is not saved from the operation of the statute that the bills filed subsequent to that of Harden v. Clarke were not, in fact, continuations of that suit, and they distinguished supplemental bills from original bills, in the nature of supplemental bills, and they cited Mitford on Pleading, 4th ed. 65, Daniel's Ch. Practice, 1402; Lloyd v. Johnes (9 Ves. 37). As to the second point, they argued that the suit under which it is contended that the original cause is restored, and the judgment creditor entitled to the benefit of that suit as against the Statute of Limitations. Such seems to have been the opinion of the Commissioners, who decided not only that the cause of 1811 was brought down to the present time, but that it gave the judgment creditor those rights for which he now contends. Those rights are, that he is entitled to consider that cause his own, for his benefit, and for the recovery of his demand. demand, on extent of its being considered as a and to prevent his being shut out because the plaintiff has not obtained a decree within the six years; and, therefore, I am clearly of opinion that this exception must be allowed." That case came under consideration in Berrington v, Evans, (1 Y. & C. 434, Ex.) where the court took a distinction in consequence of the party coming in stating his ignorance of the pendency of the proceedings, the court held that he could not be considered as lying by in consequence of their pendency. The Irish cases go on the same principle, and do not seem to carry it further. The first is O'Kelly v. Bodkin, (2 I. E. R. 361). That was a judgment creditor's bill, not filed by the plaintiff behalf of himself and all others, and so distinguish able from Sterndale v. Hankinson, but the court held that the prayer of the bill being that of a bill on behalf of all creditors, was the same in effect. Woulfe, C. B., says " But I am of opinion, and I believe the rest of the court concur with me, that the creditor coming in under the decree in this cause was entitled to the benefit of the suit as fully and effectually as if he were the party who had filed the bill in the first instance. He adopted the suit, it became his, and it is, therefore, so far as he is concerned, to be considered as having been commenced before the period to which the statute applies, being pending at the time it was passed." He then refers to Sterndale v. Hankinson, and to Berrington v. Evans, which he says, instead of shaking Sterndale v. Hankinson, rather corrobo rates it, and goes on-" The principle of that deci sion is, that where a bill is filed by one creditor on behalf of himself and other creditors, and the others come in under the decree, it is reasonable to presume that they were lying by, seeing that there was a suit in progress, in the course of which they would be enabled to come in and prove their demands, and it would be impolitic to lay down a rule which would make it necessary for each creditor to institute a separate suit, or commence a separate action for the recovery of his particular demand," and he then refers to, and dismisses, the distinction that that was not in form a bill on behalf of the other creditors. Bermingham v. Burke, (9 I. E. R. 86,) was also an administration suit. There Sir Edward Sugden, speaking of Berrington v. Evans, says, "It does not impeach the previous decision of Sterndale v. Hankinson, nor does it, I think, prevent a creditor from coming in under another creditor's bill, filed for the general benefit of creditors when his demand would not have been barred had he himself filed the bill, and he comes in according to the decree and course of the court." The only other case I shall mention at present is Joyce v. Joyce, (10 I. E. R. 128). It was there beld that the bill in that cause was one on which a creditor might rely as being a party to it. In considering the case here, the one question is, What the bill filed in 1811 was? At that time the debtor was alive; no statute had been passed making judgments a charge upon land, and there was no direct relief for a judgment creditor in a court of Equity. If the debtor's estate were equi table, by that circumstance the Conusee was without Inasmuch as it is substantially necessary for the recovery of his demand to prevent the bar of the 40th section of the Statute of Limitations, on which there has been so much discussion, it is necessary to advert to that clause, in order to see what must be sustained to give the creditor the benefit of that suit. [His lordship here read the 3 & 4 Wm. 4, c. 27, s. 40.] It has been established, that that relates to actions brought after the act was passed; but it has been a question whether it does where an action or suit was then pending. It is now decided, that an ordinary creditor's suit, instituted on behalf of the plaintiff and all others who shall come in and prove, has the effect, not only of keeping alive the plaintiff's own demands, but those of all the other creditors who come in under the decree. That is decided in the well known case of Sterndale v. Hankinson (1 Sim. 393); and it is important to see what view was taken by Sir Anthony Hart, and the principle on which he held that doctrine. That case was before the late statute, and is so far open to observation. The marginal note of that case is, "A bill filed by one creditor, on behalf of himself and all others, will prevent the Statute of Limitations from coming against any of the creditors who come in under the decree." The bill in that suit was filed on the 5th of May, 1812, on behalf of the plaintiffs and all other creditors of George Hankinson deceased, he having died the 27th June, 1810. On the 14th of April, 1818, the usual decree was made. The Master reported against several claims, on the ground that the testator having died in 1810, and the decree not being until eight years afterwards, the claimants were barred of any remedy. To this report three of the creditors excepted. In the course of the argument, the Vice-Chancellor observed, "This is not a bill filed simply by A., but by A. on behalf of himself and all other creditors. It is, in fact, a bill by all the creditors." In his judgment, he says, "The other fallacy is, that the statute bars the suit in Equity, which it does not; but as courts of Equity will not entertain stale demands, they have thought proper to adopt the limit of six years in analogy to the statute, and pleas of the statute are admitted in these courts on analogy only, but when the circumstances of a case are such as to make it against conscience to apply the rule founded on this analogy, the court will not enforce it. It has been said, that if a creditor files a bill on behalf of himself and others, and permits it to be dismissed before decree, the statute would apply. I dissent from this proposition; for I think the court would protect a creditor against an accident of that kind." "Suits have been instituted in which creditors, in consequence of the deaths of parties, and a variety of other circumstances, have been unable to procure a decree for two or three years, although every reasonable diligence may have been used; and if the schedules to most of the reports made in suits of this nature were looked through, it would be found, by comparison of dates, that two-thirds of the creditors might have been shut out by a strict application of the rule." I entertain no doubt that every creditor has, after the filing of the bill, an inchoate interest in the suit, to the prove very remedy at law, and might therefore come into this court, but he had properly no direct relief here in the life time of the conusor. This bill is the bill of a mortgagee; it prays an account of what is due to him; it no doubt prays an account of incumbrances, and the conusee might come in to 'his debt, but he has no priority with the plaintiff. It was not till 1841 that a bill was filed which the judgment creditor might himself have filed. Now, the language of the cases demonstrate this principle, that though the words of the act do not refer to the proof of demands under a bill, it must be at least in the nature of a bill for the recoof the demand in question. The mortgagee's suit was not for the recovery of the judgment creditor's demand; he could not have instituted that suit, nor could any one else have filed the bill on his behalf. No doubt the bill of 1841 was one of which he might have the benefit if he were in proper time; that was for general administration, but then the judgment had been long barred. The case of Brown v. Lynch (9 I. E. R. 316,) seems to go on this view of the case, and takes a distinction between a mortgage suit and an administration suit, and the same distiction is taken in the argument of O'Kelly v. Bodkin, where counsel says- "The bill, although not filed expressly on behalf of creditors generally, was to all intents and purposes a credi tor's bill; the whole frame of the suit was essentially different from that of a mortgage suit, and the prayer was plainly that of a creditor's bill." That was in argument, but, as I said, the case of Brown v. Lynch (9 I. E. R. 316,) went on the same principle. The original bill in that cause was filed in 1815 for foreclosure and sale. Pending the suit the defendant died, and on the 3d November, 1829, a bill of revivor and supplement was filed against the real and personal representatives of the mortgagor, which prayed the usual accounts of his real freehold and personal estates, and of his debts. A decree to account was obtained, and on the 20th of January, 1837, the applicant filed a charge on foot of a judgment of 1810, and the court gave her the benefit of the suit, expressly taking that distinction, and proceeding on the principle that the bill of 1829 gave her her rights, and not the former suit. Baron Pennefather says "The suit, so far as it is one of which the general creditors could take advantage, was instituted in 1829," and further, "I therefore am of opinion that this question must be considered as if the applicant had duly proceeded on the charge originally filed by her, as if the proofs originally made by her had been given in due time in support of her charge. That brings the matter to the consideration of what would have been the result of a charge filed by a judgment creditor in 1837, under a decree in a suit instituted in 1829, which charge had been duly proceeded upon, when the judgment upon which that charge had been founded, had not been barred by any statute in force in Ireland antecedently to the 3 & 4 W. 4, c. 27." That bill of 1829 was exactly analogous to the case now before me, but this judgment had been barred before 1842, when the second bill in this cause was filed. Whatever may be the ultimate decision on this doctrine, I am not required to carry it so far as this case, which is not even within the requirements of the decisions in this country. I am not quite sure, however, that Sterndale v. Hankinson, if re-considered by the House of Lords, would be departed from, and that the analogy of it would not be followed. In the case of Watson v. Birch, (15 Sim. 528,) the Vice-Chancellor, after remarking that Sterndale v. Hankinson was decided before the statute, says"As I have expressed it to be my opinion that the statute prevents any proceeding being taken to enforce a judgment against either land or personal estate after the expiration of the time limited by it, it seems to me that the matter was concluded, unless there was something in the bill filed in 1817, or in the proceedings upon it, which prevented the statute from operating. I cannot, however, make out that there was anything that could have that effect." He then goes into the consideration of the question in that case, into which it is not necessary for me to follow him. I may consider the cases in this country not to be disturbed here, but by allowing this claim I should be carrying them beyond their principle, and introducing a new exception into the statute. Chancery Hearing Book, CI., p. 125. ROLLS COURT.-Jan. 29. IN THE MATTER OF THE ACT TO FACILITATE THE H. K. being seized in fee of the lands of B., had This was a petition for the sale of lands under the Incumbered Estates Act, and from the verifying affidavit it appeared that by indenture of settle ment bearing date the 12th day of Nov. 1799, and made upon the marriage of the petitioner, Hugh Kennedy, with Grace Dorothea Hughes, the lands of Ballybeen and Carrowreagh, situate in Dundonald, were conveyed to trustees to the use of John Kennedy, the father of petitioner, for life, with remainder to petitioner for his life, with remainder to his first and other sons in tail male, and also a trust term was thereby limited for raising £2,000 for younger children, and by said indenture the lands of Craigavad were also settled to the use of petitioner for life, with remainder to the first and other sons of said marriage, in tail male, also the lands of Cashel, in the county Tipperary, were limited to the use of Thomas Hughes (father of the said Grace Dorothea,) for life, remainder to the said Grace Dorothea for life, remainder to trustees for a term of 450 years, to raise £2,000 for the younger children of said marriage, with remainder to the first and other sons in tail male. That the marriage between the petitioner and said Grace Dorothea was shortly after solemnized, and there was issue thereof John Kennedy, the eldest son, and several other children. That previous to the 1st of October, 1828, Grace Dorothea died, having survived the said Thomas Hughes. That by indenture of the 25th of December, 1807, petitioner being seized in fee of the lands of Ballycultra, or Cultra, conveyed certain part of same to the use of himself for life, with remainder to the said John Kennedy, his son, in tail male, with like remainders to the other sons of petitioner. That said John Kennedy attained his age of 21 years in the year 1823, and that in 1824 recoveries were suffered of Ballybeen, Carrowreagh, (the Dundonald estate,) Craigavad, and the Burgage lands of Cashel, and same were settled subject to such uses as petitioner and John Kennedy should appoint. That upon the second marriage of petitioner in 1824, the lands of Ballybeen and Carrowreagh, (the Dundonald estate,) were conveyed to trustees upon trust that John Kennedy might receive an annuity of £400 during the joint lives of himself and his father, and subject thereto-after securing a jointure of £500 per annum to Sophia Jane, his said second wife-to such uses as said petitioner and John Kennedy should jointly appoint, and, in default of appointment, to petitioner for life, remainder to John Kennedy in fee, and the sum of £1,000 was thereby charged on said lands as a portion for the younger children of said second marriage. That by indenture of the 1st of October, 1828, reciting said several matters, and that petitioner was then seized in fee, amongst other estates, of part of the lands of Cultra, not comprised in the deed of 1807, and the Holywood mill, and had charged same by mortgages and other incumbrances, and was indebted by bond and simple contract debts to a considerable amount, and had proposed to said John Kennedy to join him in selling Ballybeen and Carowreagh (the Dundonald estate) and the Burgage lands of Cashel, and had also proposed to sell the Hollywood mill and other lands; and that the produce of such sales, and also a sum of money to be raised by mortgage, as thereinafter provided, should be applied towards the payment of said debts and incumbrances, and that petitioner proposed to settle the residue of the estates, of which he was then seized in fee, consisting of Cultra, and its various sub-denominations, upon said John Kennedy, subject to such of the debts and incumbrances affecting same as should remain unpaid by the produce of such sale; and that the said John Kennedy, considering it more advantageous to preserve Cultra, &c., in the family than to suffer same to be sold, had agreed to said proposal. Accordingly, by the said indenture, the Dundonald and Cashel estates, and the Hollywood mill, and other lands, were con veyed to a trustee, upon trust, to sell same, the produce of such sale and the rents in the meantime to be applied, in the first place, in payment of the expenses attending same, then in discharge of the incumbrances affecting the lands so sold, the residue in discharge of the incumbrances affecting the lands whereof petitioner was seized in fee, and his judgment, bond and specialty debts; and the lands of Cultra, &c., were conveyed to said trustee, subject to so much of the debts affecting same as should remain unpaid, upon trust, to pay certain annuities charged thereon and subject thereto, to raise a sum not exceeding £40,000, to be applied in payment of said charges and incumbrances, the residue of the rents to be paid to petitioner for life, with remainder to said John Kennedy, his heirs and assigns. After the execution of said indenture, the Dundonald estate and Holywood mill were sold, and the proceeds applied according to the provisions thereof. In the month of Decem ber, 1839, John Kennedy died, having, by his will, devised all his estate in said lands to his brother, Robert Stewart Kennedy, the respondent. The affidavit of the petitioner then stated that frequent attempts had been made to sell the Burgage lands of Cashel, but without effect, no offer having been made for same. That petitioner, as owner under the Incumbered Estates Act, was desirous of selling the lands of Cultra. That a bill was filed by John Kennedy and James Barnett, as assignees of part of the sum of £2,000 charged on the Burgage lands of Cashel, but said parties consented that this petition should be presented. Hughes, Q. C., and D. M'Causland for the petition. Martley, Q. C., and C. Dobbs for the respon dent. This petition is in violation of the deed of 1828, the object of which was to preserve Ballycultra in the family. The Cashel estate is the primary fund for payment of these incumbrances, and must be sold in the first instance. Also, it appears, that by a deed dated in 1844, Hugh Kennedy parted with his life estate; therefore, not being an owner within the meaning of the act, be is not entitled to present this petition. Jan. 29.-MASTER OF THE ROLLS.-In this case a petition has been presented by Hugh Kennedy, under the second section of the Incumbered Estates Act, for a sale of the lands of Ballycultra, for payment of the incumbrances affecting same. The petitioner is a tenaut for life under a settlement bearing date the 1st day of October, 1828, and made between the petitioner and Sophia Kennedy of the first part, John Kennedy, therein described as the son and heir apparent of the petitioner of the second part, and several other persons of the third and fourth parts. From the recitals contained in that deed, it appears that by the settlement made upon the marriage of the petitioner with his first wife, and dated the 12th of November, 1799, the lands of Bally been and Carrowreagh, called the Dundonald estate, and Craigavad, were settled upon petitioner for life, with remainder to his first and other sons in tail male. There were other limitations of the same lands, which are not now material to state. Other lands, the property of Thomas Hughes, were also settled under this deed of 1799. This property, called the Burgage lands of Cashel, was situate in the county Tipperary, and, as appears by the schedule annexed to the petition, is of the yearly value of £966. 18s. 10d. The petitioner also, upon the death of his father, became seized in fee of the lands of Ballygraney, Ballykeel, and other lands. The said deed of 1828, after reciting these matters, stated that the petitioner was indebted, by mortgage, bond and simple contract debts, to a large amount, and that it was expedient to make some provision for payment of such debts. That Hugh Kennedy applied to his son, John Kennedy, to join him in selling the Dundonald estate and the Burgage lands of Cashel, in Tipperary, and H. Kennedy proposed to sell part of the lands of which he was seized in fee, and that a sum to be raised by mortgage as thereby provided, should be applied in payment of these debts, and also in payment of bond and simple contract debts of Hugh Kennedy, and the petitioner proposed to settle the residue of the estates of which he was seized in fee, consisting of the lands of Ballycultra-except the house and demesne, which had been settled on the eldest son by a deed of £1807-subject only to such of the debts as should remain unpaid by the produce of such sale. The deed then recited that John Kennedy being desirous of preserving the lands of Bullycultra in the family, had agreed to the proposal so made. Accordingly the settled estates, and the Cashel property, were conveyed to a trustee and his heirs, upon trust to sell the same, and, in the meantime, to receive the rents; the proceeds of the sale and the rents to be applied in payment of the necessary expenses, and then to pay off the incumbrances affecting the lands so to be sold, and the residue to be applied in payment of the charges affecting the lands of which the petitioner was seized in fee at the time of the execution of the deed of 1828, and also of the other debts of the petitioner; then follows a conveyance, by the petitioner, of Ballycultra-subject to such debts as should remain unpaid -to the trustee and his heirs, upon trust, to raise by sale or mortgage a sum not exceeding £40,000, and to pay the surplus rents to petitioner for his life, and a jointure was thereby provided for his wife, then to the use of J. Kennedy, his heirs and assigns. The trustee under the deed of 1828 acted in performance of the trusts of it, and the lands of Ballykeel, Carrowreagh, and Holywood were sold accordingly. J. H. Kennedy died in 1839, and Robert Stewart Kennedy-who opposes this application-under the provisions of J. Kennedy's will, became entitled to the property so settled by the deed of 1828. The petition is to sell Ballycultra, the object of the deed of 1828 being that these lands should be preserved in the family. That arrangement was entered into for full and valuable consideration from J. Kennedy. In order to understand the amount of this consideration it is to be observed when J. Kennedy executed the deed of 1828, he was entitled in remainder to the settled estates, which were then only subject to the sum of £4,000. The portion of the settled estates sold after 1828 produced £38,000, the rental of the part unsold amounted to £966 per annum. The estates settled by the deed of 1799 on J. Kennedy were worth £3,000 per annum, subject only to £4,000, so that John Kennedy, as an equivalent for the lands of Ballycultra, and to prevent their alienation, gave up the lands which had been settled on him by the deed of 1799. This petition is now presented in direct violation of that deed of 1828, and the petitioner seeks to sell Ballycultra to pay his own debts, leaving unsold the lands of Cashel, which produce £966 per annum, and which, by the deed of 1828, were to be the primary fund for payment of those debts. The first question is, whether the act compels the court to assist the petitioner in so doing. I do not consider that the court is bound by anything in that act to do so. By the tenth section the court is at liberty to direct the Master to inquire "whether any such incumbrances or charges shall affect any land or estate other than the land or lease which shall have been contracted, or be desired to be sold, and whether such other land or estate shall be liable in priority, or in equal degree or in posteriority." And the 11th section directs that all the laws, rules, orders, &c., in force with respect to proceedings in suits for foreclosure and redemption, not inconsistent with the provisions of this act, shall apply to proceedings under it, so far as circumstances shall admit. It is plain if this were a plenary suit for a sale of the lands of Ballycultra, the court would direct those lands to be sold which were the primary fund, and the 11th section of the act shews that this court is not to take a different course upon this summary proceeding. I am of opinion that this petition is unsustainable, for it is framed with the intent of getting rid of this deed of 1828. It is also unsustainable on other grounds-It appears that by a deed of the 13th April, 1844, and which was registered on the 6th of July following, that the petitioner, in consideration of the sum of £1956, conveyed to one John Kennedy all his rights to the rents and profits of these lands, and appointed John Kennedy, his attorney, to receive these rents. Thus he is not an owner within the second section of the act, and has no right to present this petition. This objection appearing conclusive, it was suggested to the court that John Kennedy, to whom all the interest had been conveyed, was only a trustee, and that there was an unregistered contemporaneous deed of trust under the provisions of which the petitioner is interested, and is entitled to present this petition, being an owner within the act. I |