throw the judgments, in part at least, on the Baldwin moiety, and thus exonerating pro tanto the Bernard moiety, to secure a sufficient fund to pay off the mortgage out of that moiety. 1855. Rolls. TRESSILIAN v. CANIFFE. It appears to me that that argument is not well founded; and as express notice has been brought home to Jane Hennessy prior Judgment. to her marriage and prior to the mortgage, of the arrangement entered into many years before, between the respective owners of the Bernard and Baldwin moieties, that the three judgments should be paid out of the Bernard moiety exclusively, I am of opinion that she, in her character of mortgagee, cannot throw the judgments on the Baldwin moiety. The observations of Lord Redesdale, in Hamilton v. Royse (a), are an authority for that proposition. Lord Redesdale says (pp. 327, 328):"A purchaser takes subject to all equities to which the vendor was subject, and of which the purchaser has notice. Here the purchaser takes under the settlement of January 1788; without that settlement he has no title; consequently he takes with notice of that settlement; and taking with notice of that settlement, he takes with notice of a clear equity against the estate which he has purchased, that is, that whatever incumbrances might affect the estate of Boherlack were to be made good out of this estate; that this estate, having been given as part of the consideration for the settlement of Boherlack, must in the hands of T. H. Royse be liable to that equity. It does not follow that he had notice of the particular incumbrance; but he had notice that the lands of Boherlack were to be indemnified out of these lands against any incumbrance affecting Boherlack, and executed by T. H. Royse. This is an equity of which every purchaser under a settlement must have notice; for it is a clear rule that a man cannot claim under a deed and avoid the deed; he must submit to the whole, and he has notice of every thing of which the vendor had notice, so far as concerns that deed." It is not, however, necessary that I should decide that point at present, as at all events it is in my opinion premature to appoint a receiver over the Baldwin moiety. The Commissioners of Incum (a) 2 Sch. & Lef. 227. 1855. Rolls. TRESSILIAN V. CANIFFE. Judgment. bered Estates have refused, at the instance of the petitioner, to make absolute the order for a sale of the Baldwin moiety, to pay off the . three judgments, until the Bernard moiety shall be sold, and it shall be ascertained whether it will be necessary to sell the Baldwin moiety. On the same principle, I am of opinion that a receiver should not be appointed, at all events at present, over the Baldwin moiety. When the Bernard moiety shall be sold, and the proceeds distributed, and the three judgments paid thereout, if Hennessy and wife have any equity in respect of their claim under the mortgage to marshal and be paid so much of their mortgage out of the Baldwin moiety on which the mortgage is not a charge, as they allege that moiety should have contributed to the payment of the three judgments, let them apply, if so advised, after the sale of the Bernard moiety and of the fourth denomination, and the distribution of the proceeds. I see great difficulty in sustaining any such application, the more especially in a petition matter under the 15th section; but it is not necessary to decide that question now. I am of opinion that at present, so far as Hennessy and wife claim on foot of the three judgments, they are bound to go against the Bernard moiety; and so far as they claim under the mortgage of 1843, which is no charge on the Baldwin moiety, they have not established any such right, in respect of that mortgage, as authorised the Master to appoint a receiver over the Baldwin moiety of the three denominations. Entertaining that opinion, I must set aside the Master's decretal order, so far as it appoints a receiver over the Baldwin moiety; but I shall do so without prejudice to any application which the petitioner, if so advised, may make, after the sale in the Incumbered Estates Court of the Bernard moiety of the three denominations. Order. It is ordered by the Right Hon. the MASTER OF THE ROLLs, that the decretal order of Acheson Lyle, Esq., the Master in this matter, bearing date the 25th of April 1855, be set aside, so far as it is thereby ordered that a receiver be appointed to receive the rents, issues and profits of the entire of the lands of Glonmacarny, Knockagarrane and East Gully; and it is further ordered that a receiver be appointed over the Bernard moiety of the said three denominations, now vested in John Caniffe, assignee of William Banfield Bernard, upon his entering into security by recognizance, as in such cases usual; and let the receiver keep a separate account of the rents and profits of the said moiety, and a separate account of the rents and profits of the lands of Knockamortealy in said Master's order mentioned; and let the receiver apply the net rents and profits of the lands of Knockamortealy, after all outgoings, in payment of the interest due and to fall due on the mortgage in the petition mentioned; and let the receiver apply the net rents and profits of the said moiety of the three denominations of Glonmacarny, Knockgerrane and East Gully, in payment of the interest on the three judgments in the Master's order mentioned, obtained against William Banfield; the first in Trinity Term 1803, the second in Trinity Term 1803, and the third in Trinity Term 1805; the latter two judgments being erroneously stated in the Master's said order to have been obtained in 1815. And it is further ordered that after the interest due and to accrue due on said three judgments shall have been paid, the receiver do apply the surplus net rents and profits of the said three denominations in payment of such part of the interest due and to accrue on said mortgage as shall not be paid out of the rents and profits of Knockamortealy; and let the deposit be returned. This order to be without prejudice to the petitioner or her cestui que trusts Martin Hennessy and Jane his wife, if so advised, applying to the Master or the Court for the extension of the receiver over the Baldwin moiety of the said three denominations, after the sale of the Bernard moiety in the Incumbered Estates Court, and the distribution of the proceeds of such sale. 1855. Rolls. TRESSILIAN บ. CANIFFE. Judgment. A mortgagee HUGH KELLY demised the lands of Farrankelly to Bernard Kelly in possession brought an action for rent, which proved abortive, having been for three lives. Bernard Kelly afterwards demised the same lands to Edward Byrne. Bernard Kelly died in 1828, having devised his interest to two trustees, of whom William Cooke was the brought in the survivor, in trust, if his son John should die without issue, for name of a party who had no his eldest son Denis B. Kelly for life, with remainder over. Hugh legal title to the rent, and Kelly devised the reversion to John Burke for life, with remainder against a party who was not to his son Henry Burke. On the 4th of July 1844, John Burke and legally liable to it. A con- Henry Burke mortgaged the reversion and rent of £48. 8s. 6d. to sent was en tered into by Mathew O'Connor, in trust for the respondent Arthur O'Connor. which it was record should be withdrawn, agreed that the The mortgagee having received the rent for some years, it fell in arrear in 1851. An action was brought, under the circumstances that each party stated in the judgment, in the name of Arthur O'Connor, the rehis own costs, presentative of another Mathew O'Connor, who was not the trustee plaintiff' should in the mortgage of 1844, against Denis B. Kelly, who was not the not bring any should abide and that the for the rent. other action person liable at law to the rent, the trustee of the will of Bernard Kelly having accepted the trust. The action having thus been Held, in a suit to charge the mortgagee with wilful default, that he was not chargeable brought by a wrong party, and against a wrong party, the record was brought down to the Assizes for trial, when the mistake having been discovered, a consent was entered into, by which it was agreed with the rent that the record should be withdrawn, each party to abide his own which he had failed to re- costs, and that the plaintiff should not bring any other action for the rent. A cause petition was filed by John Burke against rent, and Arthur O'Connor, for redemption, and seeking an account of the cover, as the consent did not release the afforded no de fence against rents received by the respondent, and to charge him with wilful the recovery of rent at law or default as mortgagee in possession. The petition was referred to equity, butMaster Litton, under the 15th section of the Court of Chancery Held also, that as the action (Ireland) Regulation Act 1850, and the Master by his decree gave had failed, by the neglect of credit to the respondent for the sum of £97. 13s. 10d., the costs the mortgagee, he was not entitled to credit in the account between him and the mortgagor for the costs of the action. 1853. Rolls. BURKE V. of the abortive action, and did not charge him with the sum of £77. 6s. 2d., the rent for which the action was brought. An appeal against the decree was originally moved on the 9th of May 1853, when an action was directed to be brought for the rent. The O'CONNOR. petitioner having declined to give an indemnity against costs or to proceed with the action, though several applications were made to compel him to do so, the appeal motion was now (May 29) renewed. The question argued was, whether the respondent was properly chargeable with the said two sums? The mortgage deed and proceedings in the action are stated more fully in his Honour's judgment. Mr. Martley and Mr. Deasy, for the petitioner. The following cases were cited:-Lord Trimleston v. Hamil (a) ; Biscoe v. Perkins (b); Detillen v. Gale (c); Loftus v. Swift (d); Vez v. Emory (e); Ex parte Mure (f); Williams v. Price (g); Dryden v. Frost (h); Hill on Trustees, p. 576. The MASTER OF THE ROLLS. A motion was made in this case on the part of the respondent Arthur O'Connor, to renew the motion of the 1st of February 1855, standing over in pursuance of the order of the 14th of February 1855; and that so much of the order of E. Litton, Esq., the Master in this cause, as declared the respondent Arthur O'Connor entitled to credit for the sum of £97. 13s. 10d., and that he was not chargeable with the sum of £77. 6s. 2d., be confirmed, and that the petitioner should be directed to pay the respondent Arthur O'Connor the costs of the orders of the 9th of May 1853, and of the 7th of February 1854, and of the proceedings thereunder, and the costs of the motion of the 1st of February 1855, and of the present motion. (a) 1 Ball & B. 385. (e) 5 Ves. 141. (g) 2 Sim. & St. 581. (b) 1 Ves. & B. 485. (h) 3 M. & Cr. 670. Statement. Argument. 1855. Nov. 3. Judgment. |