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(1821) 3 Bligh 181
REPORTS OF CASES HEARD IN THE HOUSE OF LORDS UPON APPEALS AND WRITS OF ERROR, And decided during the Session 1821, 2 Geo. IV.
IRELAND.
(COURT OF CHANCERY).
No. 10
A person purchasing lands under a decree is bound to see that the directions of the decree are observed.
Lands in strict settlement, with a power to grant leases, being subject to prior incumbrances, are, by a decree in a suit instituted by the incumbrancers, directed to be sold subject to the charges prior to the deed of settlement. Pending the suit, the tenant for life under the settlement grants leases not authorized by the power, and raises money upon annuities for his life, which he charges upon the lands, and they are sold subject to those charges.
Held (reversing the decree of the Court below), on a suit by the remainder-man in tail, that the sale, subject to charges not warranted by the decree, is void.
Where considerable delay has occurred in the prosecution of a suit, costs are not to be given, although the decree is reversed.
Sir Vesey Colclough, upon his marriage in 1767, being tenant in tail of a manor and lands called Tintern, &c., subject to portions, &c., conveyed them by deeds of lease and release to a trustee in fee (subject to a term of one thousand years thereby created) to the use of himself for life, remainder to the sons of the marriage successively in strict settlement. The incumbrances then affecting the estates, according to a covenant in the settlement, did not exceed 14,000 l. The
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In July 1767, the deed was registered, and a fine levied according to covenant. The Appellant was the eldest and only surviving son of the marriage. The two sums of 3,000 l. were raised under the power, and paid to Sir Vesey; but the trustees of the term permitted Sir Vesey to receive all the rents of the estates, and omitted to pay the interest upon any of the incumbrances affecting the estate.
In 1772 a bill was filed in Chancery in Ireland by the husband of one of the daughters of Cæsar Colclough, the grandfather of Sir Vesey, and others, who were entitled to prior incumbrances affecting the lands in settlement, praying that the debts owing to them, and charged on the lands, might be raised by a sale.
In 1778 a decree was made in the cause, referring it to the Master to take an account of the incumbrances affecting the lands comprised in (and prior to the registry of) the settlement of 1767, of
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In August 1778 Cæsar Colclough was appointed receiver, in the suit instituted as before mentioned, to raise the sums charged upon the lands.
In 1780, by the final decree in the cause, the incumbrances mentioned in the report, amounting to 25,000 l., great part of which was an accumulation of interest, were declared to be charges on the estates comprised in the settlement of 1767, which settlement was recited in the decree; and it was decreed that those incumbrances should be paid, or that the lands should be sold for payment. Pending the suit to raise the prior incumbrances, annuities charged on the lands for the life of Sir Vesey, and leases not authorised by the power, were granted by Sir Vesey to Cæsar Colclough, the receiver in the suit.
In 1781 the lands were set up to sale in the Master's office, subject to the annuities, and the leases, and were purchased by Thomas Richards. The deed by which the lands were conveyed to him recited the grants of the annuities, and that the lands were sold subject to them.
At the date of these transactions the Appellant was an infant. Sir Vesey, his father, had been appointed and acted as his guardian, and among other things signed, in his name, the deed of conveyance to the purchaser under the decree. Sir Vesey died in 1794, leaving the Appellant, his
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At the time of his father's death the Appellant was a prisoner in France, and so remained until the year 1805.
In 1802 a notice was served upon the Respondents, who were the co-heiresses of Thomas Richards, the purchaser, and their then intended husbands, that it was the intention of the Appellant to impeach he purchase made under the decree.
The bill in the cause, which was the subject of appeal, was filed against the Respondents in 1805, praying that the deeds of conveyance to Richards might be declared fraudulent, and void, that possession of the lands might be restored to the Appellant; and that the Respondents should account for the rents, &c., the Appellant offering to pay the purchase-money, with interest.
The cause was heard in 1811 on pleadings and proofs, when the bill was dismissed. The appeal was against the decree dismissing the bill.
Counsel: For the Appellant,
Mr. Agar,
Mr. Shadwell, (
Mr. Seton.)
For the Respondents,
Mr. Wetherell,
Mr. Lovat.
9 March 1821.
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_________________ Footnote _________________
* Colclough v. Bolger, 28 June 1816, MS.; and see Dow's Rep. vol. v. p. 54.
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It is argued that persons purchasing under the authority of a decree ought to be safe; but it is a settled maxim of equity, that persons purchasing under decrees of the court are bound to see that the sale is made according to the decree. In a case, the name of which I do not at this moment recollect, it was laid down by Lord Hardwicke, that it was the business of a purchaser to see that the persons who had the right to convey were before the court. If he takes a title which a decree in an imperfect suit does not protect, he must abide the consequence
*. On these principles the Appellant has a right to impeach the transaction. The decree protects parties only according to its terms. The provision of the decree was, that the estate was to be sold, subject to incumbrances prior but not subsequent to the settlement of 1767. And as to these latter incumbrances, the decree directed that the estate should be free from them. On this account the judgment is erroneous, and the purchase is with notice, because the title is founded on the decree: the purchaser had, moreover, full notice of the settlement, because it is recited in his conveyance. Such a sale, therefore, cannot be protected by the decree. Another objection to the proceeding is, that the estate was sold subject to leases which had been granted under pretence of the power, but were in fact contrary to it. It is probable, from circumstances established in evidence,
_________________ Footnote _________________ * See
Giffard v. Hart, 1 Scho. & Lef. 386.
Hamilton v. Houghton,
ante, vol. ii. p. 1.
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The
The reversal of the decree may be a hardship upon the present Respondent; but if justice requires such a measure, the consideration of hardship must be disregarded. The decree cannot be supported unless the doctrines of Equity in Ireland differ from those in England. Sales under decrees are entitled to protection when they are conformable to the decree, but not otherwise. It might be consonant to moral justice to set a value upon the annuities, and add that value to the purchasemoney; but where parties have made a purchase contrary to the authority of the decree they cannot be permitted afterwards to conform for the purpose of taking the benefit of the decree. As to the lease, the main defect is the under-value. In other respects there is strong ground for suspicion, but that is not a safe ground for decision. Judicial acts, in cases of fraud, must rest on clear evidence. By the decree, the Master was directed to inquire what parts of the estate were most fit to be sold. No report was made on that point: but whether that defect
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Die Merc. 14 Mar. 1821.
Ordered and adjudged, That the said decree complained of in the said appeal be and the same is hereby reversed; and it is declared, That the sale of the lands of Curraghduffe, Cloneburne, and Ballycreene otherwise Ballyvovocreene, in the pleadings mentioned, ought to be deemed fraudulent, and void as against the Appellant, and the several other persons claiming after him under the deeds of settlement of the 12th and 13th of June 1767, and ought to be set aside, so far as the same affected the interests of the Appellant, and the several persons claiming after him under such settlement: And it is further declared, That the deeds of conveyance of
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