Appointment of Trustees-Costs of overpaid There is no objection to two trustees being appointed in the place of a sole trustee. An overpaid creditor, puisne to the plaintiff, has no right to his costs, though he was not paid off at the time of putting in his answer. This case came on, on further directions. Deasy, Q.C., for the plaintiff, amongst other matters, asked that it might be referred to the Master to appoint a new trustee of a fund in the cause, in the room of the former trustee, who had been discharged as an insolvent debtor. [Lord Chancellor. Was there ever more than one trustee of this fund?] There were two. [Lord Chancellor.-I do not see any objection to putting two trustees in the place of one; take an order to appoint two trustees.] Mr. R. Warren, for one of the defendants.-An overpaid mortgagee in possession applied for his costs; at the time of putting in his answer, a small sum was still due to him, so that he was then a necessary party, but had since been overpaid. Deasy, Q.C., contra.-This party is an incumbrancer puisne to the plaintiff, and is not entitled to costs as against him, and he cannot have them out of the fund. LORD CHANCELLOR.-How can I give this demand against the plaintiff? He had a right to get this party out of his way; as a trustee, he may be entitled to his costs against his cestui que trusts, but I do not see how I can give them here. ROLLS COURT. O'KEEFE V. LANIGAN.-March 2. Production of Documents. In a suit instituted to set aside an assignment of a mortgage, the court refused to order production of an alleged mesne assignment to the assignor stated to have been made by endorsement on the mortgage, and not mentioned in the bill. The bill in this cause was filed by the plaintiff, as personal representative of his brother, Charles O'Keefe, and stated, that on the 1st of March, 1834, a certain mortgage was executed to Charles O'Keefe, senior, to secure payment of the sum of £5,000 advanced by him-that C. O'Keefe, senior, having died intestate, administration was granted to his widow, Alicia O'Keefe; and, on the 9th of September, 1841, said mortgage was assigned to Charles O'Keefe, junior, as part of his distributive share in his father's assets. The bill then stated, that C. O'Keefe was a person of weak intellect—that he went to reside with the defendant, who obtained possession of the deeds. by which said mortgage debt was secured, and obtained from C. O'Keefe his signature to some deed purporting to assign said mortgage to the defendant. In December, 1843, C. O'Keefe died, and the plaintiff obtained administration to him, and the bill prayed that the defendant might be declared agent of C. O'Keefe, and liable to account to the plaintiff, and that the assignment of the said mortgage to the defendant might be declared fraudulent and void. The defendant, by his answer, admitted possession of the deed of 1st of March, 1834, and 9th of September, 1841, and stated, that by indenture of the 23rd of June, 1843, C. O'Keefe assigned the mortgage to the defendant, who secured to O'Keefe an annuity of £200. The defendant denied fraud. By order bearing date the 20th of July, 1848, the defendant had been directed to produce the assignment of the 23rd of June, 1843. The plaintiff now moved for production of the mortgage of the 1st of March, 1834, and a certain endorsement thereon, signed " Alicia O'Keefe," by which the plaintiff stated, he believed the said mortgage was assigned to C. O'Keefe, junior. Christian, Q. C., for the motion-This deed constitutes a material part of the plaintiff's case; he is personal representative of C. O'Keefe, and this endorsement is a material part of the plaintiff's The statement in the bill is, that the assignment was made while he resided with his own family. This is denied by the answer, and it becomes necessary to ascertain the fact from the assignment itself. case. Hughes, Q.C., and Mr. Wm. Smith, contra It is admitted that there is no statement in the bill concerning the endorsement; the first allusion it is in the affidavit made to support the motion. Possession of the endorsement by the defendant should be shewn. Wigram on Discovery, 210, and cases there cited. This suit seeks to set aside the assignment made to the defendant. The mortgage is to be considered as the estate, and, until the plaintiff shall establish his right to set aside the assignment to the defendant, he has no right to inspect the title deeds. The mortgage is fully admitted. The circumstance, that a mesne assignment may have been made by endorsement, cannot give a better right to production than if it had deed not stated in the bill, it is plain the plaintiff been done by a separate deed; and if by a separate deed not stated in the bill, it is plain the plaintiff could not insist on its production. MASTER OF THE ROLLS.-In this case an order has been made for the production of the deed of assignment, and the plaintiff now applies for the mortgage-admitted by the defendant to be in his possession-for the purpose of inspecting an alleged endorsement. As there is no allegation concerning the endorsement in the bill, I do not think the plaintiff would have any right to call for the mortgage, which relates exclusively to the title of the defendant. I must treat this endorsement in the same manner as if it was on a different paper from the mortgage; and, to justify an order for its production, there must be a distinct admission by the defendant of its being in his possession: for an application such as the present, is in the nature of an exception for insufficiency, and the defendant is entitled to call upon the plaintiff to read the admission in his answer; but there is no statement in the bill, nor any admission in the answer, concerning it. The plaintiff may be justly entitled to the information he seeks, but he must put it in issue in the bill. I will make no rule on this motion, without prejudice to the plaintiff amending his bill, by putting in issue the endorsement, and applying for its production if the defendant admits possession by his answer. My present impression is, that the plaintiff is not entitled to the production of the mortgage, which is unimpeached; the document which is impeached is the assignment. NUGENT v. PEIRS.-March 2. The 28 Geo. 3, c. 35, which provides that in certain In this case a decree for a sale had been pronounced, at which time the defendant, Sir J. B. Peirs, was seized in fee of certain lands in the Queen's County, by deed of the 20th of January, 1841, and made after said decree, and pending proceedings in the cause, said lands were settled upon Sir J. B. Peirs, for life, remainder to his daughters Louisa and Florence, in fee. After the execution of this deed Florence married Count Kerrignen, and by marriage settlement all her property was conveyed to J. E. Piers and H. M. Tuite, trustees upon certain trusts for the issue of the marriage. The Count and Countess Kerrignen and their family, resided at Sardinia; and J. E. Peirs resided at St. Omer's. The lands included in the deed of 1841 having been sold under the decree. titled to carry this motion. Counsel referred to M'Gahan v. Rankin, (T. T. 1848.) Mr. B. Lloyd, contra, for the purchaser. The notice in this case is framed with a view to bring the case under the 28 Geo. 3. The words of that act shew that it applies only to cases where the party is sui juris, and (if in this country,) could be compelled to execute the deed of conveyance, but by reason of his absence from the country, the Court is unable to enforce the execution by him. In such cases, the act provides that the trustee may sign, seal, and deliver the deed. The fallacy of the argument used on the other side consists in presuming that the mere execution of a deed by a married woman will pass the estate-that the execution of a deed by a married woman is a mere nullity; the only way by which she could convey was by a fine at common law, or by an acknowledgment under the recent act; and it is essential to the validity of these acts, that they should be voluntary. It was for this reason that Lord Cottenham held, in Jones v. Jordan, that a Court of Equity could not compel a married woman to execute a deed, under the statute, 1 W. 4, c. 60, s. 8, between which and the former act there is this difference-namely, that by the latter act the Master does not execute the deed in the name of the married woman; he executes it in his own name; and it would be necessary, if the application were under that act, that there should be a petition. The last act is the Irish Chancery Act, of the 4 & 5 W. 4, c. 78; but previous to proceeding under this act, there should be a tender of the instrument and a refusal to execute the conveyance; and it is Mr. F. Fitzgerald now moved, on behalf of the not pretended that that preliminary step has been plaintiff, that the Master in the cause might be at taken. Therefore, this case does not come within liberty to execute the deed of conveyance to the it. King v. Leach, (2 Hare, 57,) Jackson v. Medpurchaser, for and in the name of the defendants, the Count and Countess Kerrignen, and their chil- field, (5 Hare, 538,) and on appeal, 2 Phil. 254; chil-Fowler v. Ward, (8 Beav. 488,) Billing v. Webb, dren, and of Louisa and John Edward Peirs. This case comes within the provisions of the 28 Geo. 3, within the 1 W. 4, there should be a petition; if (12 Jurist, 427.) If the case is meant to be brought c. 35, s. 8; and even if it does not, the 1 W. 4, c. 60, within the 4 & 5 W. 4, there should be a previous would authorize such an order as we seek. A married woman is as much bound by a decree as a femme sole. Mallack v. Galton, (3 P. W. 352, and April 1.-His Honor, in giving judgment, said the case referred to in the notes.) The ground on that he was not aware of any such case in which a which an infant is not bound, is that a day is given married woman had been compelled to execute a to shew cause. In Burke v. Crosbie, (1 B.& B. 489, deed; and in England, the Lord Chancellor lately page 501), the Lord Chancellor says, "I am satis- held, that the court had no authority to make fied that a person giving full value for an estate such an order. His Honor then referred to the sold under a decree, cannot be disturbed," &c., "a 28 Geo. 3, and said he considered it only applied married woman is as much bound by the decree of to those parties who, if within the jurisdiction, the court as a femme sole," &c. A married woman could be compelled to execute the conveyance, but is capable of binding herself by a conveyance, by signing, sealing, and delivery of a deed, (which matter of record. In the case of Jordan v. Jones, was what the Master was empowered to do) by a (2 Phil. 170), before the Lord Chancellor, it was de- married woman was a nullity; as previous to the cided that the court had not jurisdiction to make an late statute, it was only by matter of record a order upon a married woman to convey. That case married woman could convey, such as by fine; and was decided on the English act, and the statute since the 4 & 5 Wm. 4, by complying with the His Honour then referred 28 Geo. 3, does not apply to England; and if that provisions of that act. statute had not passed, the court could not, of its to the 3 & 4 Wm. 4, c. 78, which provided that if own jurisdiction, have compelled a married woman any person directed to execute a conveyance, to execute a conveyance. If a married woman is to do so, the court might, after service of the bound by a decree, and refuse to execute the conorder and tender of the conveyance or instrument, veyance, the statute gives the very jurisdiction which direct the Master to execute same, and said it was the Lord Chancellor considered the court had not not contended that this act applied to the present before; also under the 1 W. 4, c. 60, we are en-case, as the provisions of it had not been complied tender. refuse with. His Honour then referred to the 1 Wm. 4, c. 60, and Billing v. Webb (12 Jur. 427), and said he did not think it necessary to give any opinion, as to whether that statute applied; for if the case was meant to be brought within it, there should have been a petition; and, as he did not think that the 28 Geo. 3 applied to the present case, he would make no rule on the motion as to the Count and Countess de Kerrignen and their children. The MASTER OF THE ROLLS refused to give any direction; but stated that Master O'Dwyer was of opinion a fee for counsel should be allowed on petitions under this act, as they were in the nature of pleadings, and his Honour concurred in that opinion. QUEEN'S BENCH. LESSEE OF HENRY BROWNRIGG v. Rev. ARTHUR Ejectment-Adverse Possession-Devise. This was an action of ejectment on the title, tried at the last Wexford Spring Assizes, befor Mr. Justice Perrin. The declaration in ejectment contained one demise in the name of H. Brownrigg, and was brought for the recovery of the lands of Coolnahorna, in the county of Wexford. The facts of the case were as follows:-H. Brownrigg, the elder, father of the lessor of the plaintiff, by his will, dated May, 31, 1796, devised the estate in question, after the death of his wife, to his eldest son, Thomas Brownrigg, for life, with remainder to his first and other sons, in tail male, and, for want of such issue male, or if such should die under twenty-one, unmarried, and without issue, then to his second son, John Brownrigg, and his issue male, according to seniority, and, for want of such issue male, or in case such should die under twenty-one, and without issue, then to Henry, the present lessor of the plaintiff in fee. The testator died in September, 1797, having survived his son John, who died in the early part of that year. Thomas Brownrigg came into possession of the estate, under the limitations in his father's will, on the decease of his mother in 1810, and in Trinity Term, 1814, levied a fine thereof, with proclamations, to the use of himself in fee. T. Brownrigg never had issue, and remained in possession of the lands till his death in 1826. No entry had been made during his lifetime, or within the time allowed by law after his decease, by any party to avoid the fine. By his will, dated the 23rd of August, 1823, Thomas Brownrigg devised the Coolnahorna estate to his nephew, Henry John Brownrigg, for life, with remainder to the use of the lessor of the plaintiff in fee. After the death of Thomas, Henry John entered into and continued in posses. sion of the estate up to the time of his own death, in January, 1847, having enjoyed the property for upwards of twenty years. By his will, dated the 13th of April, 1844, he devised the estate in question to the present defendants, upon certain trusts, for the benefit of his widow and children. The lessor of the plaintiff having filed his bill in Chancery on the 4th of June, 1847, against the present defendants, together with the widow and children of H. J. B., praying that the will of H. B. the elder, of the 31st of May, 1796, might be established, and its limitations ascertained and carried into effect, the Lord Chancellor, in the progress of the suit, directed the present ejectment to be brought, for the purpose of ascertaining the title of H. B., the present lessor of the plaintiff, to the premises. A verdict was had at the trial for the lessor of the plaintiff, and leave was reserved for the defendants to apply to have the verdict be of opinion that H. J. B. had acquired a title to changed into one for them, in case the court should the estate, by such an adverse possession thereof, as satisfied the Statute of Limitations (3 & 4 W. 4, c. 27). A rule nisi having been obtained to set aside the verdict for the lessor of the plaintiff, and enter one for the defendant, pursuant to leave reserved, cause was this day shewn by We contend that John, who died before his father, him five years after the death of the tenant for the latter-one under the will of Henry and the life, because he has no reason to look until the other under that of Thomas. There was no entry natural determination of the estate, Earl Pomfret to avoid the fine within five years from the time of v. Lord Windsor (2 Ves. sen. 482; Sheppard's its being levied, or the death of Thomas. ThereTouchstone, by Atherley, 23-36, passiin). Therefore, by the non-claim and want of entry, the is no dispute here about the validity of the fine, or of the several wills which have been admitted We submit that the lessor of the by consent. plaintiff acquired a new title by the said fine, and that, at all events, the party under whom the present defendants derive, professed to claim under the same, and his possession was, therefore, not an adverse one. R. W. Greene, Q.C., and Wall, Q.C., contra. The effect of the Statute of Limitations (3 & 4 Wm. 4, c. 27, is to operate as a conveyance of real property, Scott v. Nixon (3 Dr. & War. 388). Possession for twenty years gives an absolute title; that title was acquired by H. J. B. If a possession has an inception by wrong, the statute begins to run in favour of the possessor. It is of no consequence as to what may be the pretensions of the lessor of the plaintiff, provided we establish an adverse title in H. J. B. We admit, that at the death of the original testator, Henry, the elder, the estate stood limited to Thomas for life, with remainder to the lessor of the plaintiff in fee, the intermediate estate tail in remainder to John having lapsed by his decease in the testator's lifetime. It must be remembered, that H. J. B. was the heir-atlaw both of Henry, the elder, and of Thomas. We disclaim having taken under the will; that would have been to elect to take a bad title in place of a 鹰 good one. In the events which have happened, the lessor of the plaintiff has no title except under the will of Thomas, but the latter had, in fact, no right to make a will at all, because his estate might have been avoided by entry, by Henry, the party entitled in remainder under the will of 1796, within five years after his decease. This the lessor of the plaintiff omitted doing, and has thus established the fine. [Perrin, J.-You had, at all events, a colourable title under Thomas, and no title under any other.] The possession of H. J. B. was, however, clearly adverse to the lessor of the plaintiff, on the death of Thomas, in 1826, it having commenced by wrong. The court ought, moreover, refer the claim of the lessor of the plain. tiff to his elder title under his father, the former testator, rather than to his puisne one under his brother. The question, in fact, turns on the effect to be given to the will of the conuzor of the fine. [Blackburne, C.J.-According to your argument, H.J.B. must have entered adversely to his own title as tenant for life.] Take it quacunque viâ, the possession is adverse; if he entered as heir, he entered adversely to the will; if he did not enter as heir, he entered without right. Lynch, Q. C., in reply, was stopped by the Court. BLACKBURNE, C.J.-This case is too plain to admit of any doubt. Thomas, being seized for life, with remainder to Henry, the lessor of the plaintiff, levied a fine with proclamations, in 1814, and afterwards devised the estate to Henry John for life, with remainder to the lessor of the plaintiff. There were two limitations in the favour of estate of Thomas became an absolute estate of fee simple; and, being so seized, in 1825 he made his will, in which he limited the estate to H. J. for life, with remainder to lessee of plaintiff. Henry John could only have entered as devisee for life; he had no title by descent; his only title was that of tenant for life. He could not possibly have acquired the estate as heir-at-law, neither could he have entered as heir-at-law, when nothing descended; and he cannot here refer his possession, either to a title which did not exist, or to one which, if it did exist, at all events was tortious. When he entered in 1826, he entered as tenant for life, and that not only for his own benefit, but for the benefit of the remainder-man; and, accordingly, when he died in 1846, the remainder-man, being the lessor of the plaintiff, was entitled to the pos session of the estate. Cause shewn allowed. Note. The 4 Hen. 7, c. 24, intituled, "How often a fine levied in the Common Pleas shall be read and proclaimed, and who then shall be bound thereby," enacts, That after the engrossing of every fine to be levied after the feast of Easter, A. D. 1490, in the King's Court, afore his justices of the Common Place of any lands, &c., the same fine to be openly and solemnly read and proclaimed in the same court, the same Term, and in three Terms then next following the same engrossing in the same court, at four several days in every Term, and in the same time that it be so read and proclaimed, all pleas to cease; and the said proclamations so had and made, the said fine to be a final end, and conclude as well privies as strangers to the same, except women covert, (others than had been parties to the said fine,) and every person then being within age of twenty-one years, &c., and saving to every person or persons, or to their heirs, other than the parties in the said fine such right, &c., as they have to or in the same lands, &c, the time of such fine engrossed, so that they preserve their title, claim, or interest, by way of action or lawful entry within five years next after the said proclamation had and made, and also saving to all such other persons such action, right, &c., in or to the said lands, &c, as first shall grow, remain, descend, or come to them after the said fine engrossed and proclamation made, by force of any gift in the tail, or by any other cause or matter had and made before the said fine levied; so that they take their action, or pursue their said right and title according to the law, within five years next after such action, right, title, claim, or interest, to them accrued, descended, remained, fallen, or come. COMMON PLEAS.-EASTER TERM. LESSEE PARSONS v. PURCELL.-19th April. Ejectment-Evidence-Notice to quit signed by Receiver-Bill and Answer. Where a bill and answer have been put in evidence by the plaintiff solely for the purpose of shewing the pendency of a cause, and to establish the authority of the receiver in that cause, to sign a notice to quit-the contents of such bill and answer cannot be given in evidence for the defendant. Semble, that even were it otherwise, admissions con tained therein could not be made evidence of a written instrument not produced. The case of Trimlestown v. Kemmis (9 Clarke & Fin.) com mented on. Michael Barry moved "that the verdict had for the plaintiff at the last Assizes for the County of Limerick, before the Right Hon. Baron Richards, be set aside, and that a verdict or a non-suit be entered up for the defendant, upon the grounds that the said verdict was bad on the misdirection of the learned judge who tried the case, and his rejection of legal and admissible evidence given on said trial by plaintiff and defendant." This was an action of ejectment on the title, tried before Baron Richards at the last Limerick Assizes, for the recovery of certain lands in the possession of the defendant. On behalf of the lessors of the plaintiff, there was produced in evidence at the trial an attested copy of an original bill, filed in the Court of Chancery on the 18th May, 1843, in which Henry Watson was plaintiff, and Richard Parsons (father of the lessor of the plaintiff) was defendant; also an attested copy of Parsons' answer, filed 24th May 1843; an attested copy of an order made in the cause of Watson v. Parsons, referring it to the Master to appoint a receiver; and an attested copy of the Master's report thereunder, approving of Robert Hunt, Esq. as a fit and proper person to be appointed receiver in said cause. A notice to quit on the 1st of May, 1848, was then given in evidence, signed by the said Robert Hunt, as such receiver; and after some further evidence the plaintiff closed his case. Counsel on behalf of the defendant then proposed to read in evidence a statement contained in the bill, and admitted by the answer, by which it appeared that the legal estate in these lands was vested in the plaintiff Watson; and submitted that as no demise had been laid in Watson's name, the plaintiff ought to be non-suited. His Lordship, however, declined to receive the statement of the bill and answer as evidence, upon the ground that the bill and answer had been given in evidence merely to prove the pendency of the cause, and that their contents were not further in evidence. Slatterie v. estate became vested in Watson. Pooley, (6 M. & W. 664,) Newhall v. Holt, (6 M. & W. 662,) Earle v. Picken, (5 C. & P. 542.) [Ball, J.-How could the statements in the bill or answer dispense with the production of the written instrument? The case of Slatterie v. Pooley, and the other cases before Baron Parke, have been subsequently departed from in England; and in Ireland the whole question has been fully reviewed in the case of Lawless v. Queale, (8 Ir. L. R. 382) and the dicta of Baron Parke overruled.] In Lawless v. Queale, Crampton, J., lays down the proposition, that "a man's admissions are always evidence against himself." [Ball, J-Perhaps some of the isolated passages of Mr. Justice Crampton's judgment in that case may appear to be in your favour; but, taken in connection with the circumstances of the case, his judgment is strongly against you. The cases on this subject are collected in Taylor on Evidence.]* The grounds upon which Baron Richards ruled that the evidence was inadmissible, were, that the contents of the bill and answer were not in evidence. In Lord Trimlestown v. Kemmis, (9 Clarke and Finnelly, 777,) Tindal, C. J., says "The fifth exception on the part of the plaintiff relates to the bill in Chancery, filed by the lessor of the plaintiff against the said Thomas Kemmis, on the 14th of October, 1816, which bill the defendant produced for the purpose of showing the subject-matter of the suit, and that the lessor of the plaintiff claimed as heir-at-law of his father, the Lord Nicholas, and offered to read those allegations therein; but the plaintiff objected to the production of this evidence; and we think it is a sufficient answer against the allowance of the exception, that the bill in Chancery, the production and reading of which is now excepted against, had in an earlier stage of the cause been put in evidence by the plaintiff himself; for the bill having formed part of the evidence, the whole was in evidence, and the defendant might have insisted, at the time of its production by the plaintiff, that the whole should be read, and in consideration and contemplation of law, the whole was read." [Torrens, J-But the contents of the bill were not in evidence in this case at all. The bill was put in evidence for the simple purpose of proving the pendency of the suit, and the jurisdiction of the Court to appoint Mr. Hunt as receiver. Not a word, either of the bill or answer, need have been read for the plaintiff here; nor was there a word read in point of fact.] [Ball, Counsel for the defendant further produced a statement of facts laid before the Master in said cause of Watson v. Parsons, on the 26th January, 1849, and in which the defendant was described as tenant of the lands at that time, and debited with the rent which accrued due on the 1st November, 1848. This statement counsel relied upon as a recognition of the tenancy, subsequent to the expira-J-You will find that the case of Trimlestown v. tion of the notice to quit, and a waiver of such notice; and called upon the judge to direct a verdict for the defendant. This the learned judge declined to do, and directed the jury to find for the plaintiff, unless they should be of opinion that there had been a waiver of the notice to quit. Barry now, in support of his application, contended that the statements in the bill, and admissions in the answer of Richard Parsons, (the father of the lessor of the plaintiff, and the person through whom he derived his title,) were evidence against the plaintiff, and dispensed with the necessity for the production of the instrument by which the legal Kemmis has not the least application to the present. I remember that case perfectly, and the facts there were, that the bill was given in evidence for the express and specific purpose of reading parts of the defendant's answer; and this Court held, (as was afterwards affirmed by the House of Lords,) that the whole answer was in evidence, inasmuch as part had been read by the plaintiff. Here there was not a word of the bill in evidence; it was put in merely to show the jurisdiction of the Court to appoint the receiver. The ruling of the learned judge was, in my opinion, perfectly correct.] We • Page 294, et seq. |