Earl of Bandon v Becher
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1835 |
| Date | 01 January 1835 |
| Court | High Court of Chancery |
English Reports Citation: 6 E.R. 1517
FROM THE COURT OF CHANCERY IN IRELAND.
Mews' Dig. vii. 361, 363; ix. 309. S.C. 9 Bli. N.S, 532. See Shedden v. Patrick, 1854, 1 Macq. 594; and Ellis v. M'Henry, 1871, L.R. 6 C.P. p. 239.
[479] APPEAL from the court of chancery in ireland. The Bight Hon. the Earl of BANDON,-Appellant; HENRY BECHER, Esq.,- Respondent. [Mews' Dig. vii. 361, 363 ; ix. 309. S.C. 9 Bli. N.S, 532. SeeShedden v. Patrick, 1854, 1 Macq. 594; and Ellis v. M'Henry, 1871, L.R. 6 C.P. p. 239.] Though the Court of Chancery cannot review or correct a decree of the Court of Exchequer, yet where such decree has been obtained collusively and fraudulently, a party whose interests are afiected by it, may raise, in the Court of Chancery, either as actor or defender, a question as to its validity. Where sales of estates had fraudulently taken place under decrees of the Court of Exchequer in Ireland, obtained by collusion between the tenant for life, the mortgagee, the person in whose favour a charge had been created, and the purchaser, and where the interests of the tenant in remainder had not been protected in such suits, the Court of Chancery in Ireland, on his coming into possession, granted him relief on a bill filed to redeem. That decree was affirmed by the Lords. The fraudulent sales had been made by the first tenant for life; his son died in his lifetime; the tenancy for life continued to exist for above 35 years after these fraudulent sales. On the tenant in remainder becoming entitled, he filed a bill to redeem. held by the Court below, and affirmed by the Lords, that he was not barred by the lapse of time. Henry Becher, formerly of Creagh, in the county of Cork, Esq., being seised in fee of certain lands in that county, executed a, mortgage, dated 14th October 1737, whereby he granted and released unto Samuel Townsend, his heirs and assigns, all those the lands of Killeenleagh, Lassanaroe, Cappamore and Cahergall, [480] situate in the barony of West Carberry and county of Cork; subject to redemption on payment of the sum of £1000, with interest. Henry Becher being entitled to the equity of redemption of these mortgaged premises, and being seised in fee of several other lands, etc., died in 1738, lea,vir g John Becher (Respondent's great grandfather) his eldest son and heir-atlaw, who thereupon entered into possession of the said hereditaments, subject, as to said lands of Lassanaroe, amongst others, to the said mortgage for ,£1000. Previous to John Becher's marriage with Miss Frances Hedges, by certain indentures of lease and release of 26th and 27th March 1740, the release made between himself of the first part, Richard Hedges and said Frances Hedges of the second part, the Honourable Charles Annesley and Samuel Townsend of the third part, and Richard Tonson and Richard Eyre of the fourth part, John Becher, in consideration of his intended marriage and of £5600, the marriage portion, conveyed unto Annesley and Townsend, and their heirs, certain lands in the county of Cork, among which were some known by the names of Ardeutenant, Balteenoughtra, Ballyourane, Barnitonicane, Caherolickenny, Mauldenny, Derrynalamane, Dun-kelly, Keelbronoge, Lassanaroe, Rathcool, Ratourah, Letterscanlan, etc., upon trust 1517 HI CLAUK & FINNELLY. BANDON V. BECHER [1835] as to part of said lands, to the use of John Becher, until the marriage, then upon other trusts for limited purposes, then to- the use of John Becher for life, and then to trustees, to preserve contingent remainders. A jointure of £500 a-year was secured to Frances Hedges, and a term of ninety-nine years was vested in trustees, and, subject thereto, the lands were conveyed to the use of the first and other sons of the said John Becher by said Frances Hedges successively in tail male. In [481] default of issue, the ultimate remainder in fee was to revert to John Becher. The term of ninety-nine years was declared to be vested in the trustees, to raise by sale or mortgage £5000 fox younger children, in such shares as John Becher should appoint. The marriage between the said John Becher and Frances Hedges took place, and the issue thereof were two sons and two daughters, viz. Richard Becher, the eldest son, and who was grandfather of Respondent; Michael Becher, the second son; Jane Becher, afterwards the wife of Daniel O'Donovan; and Elizabeth Becher, afterwards the wife oi William Evans. By a settlement on the marriage of Daniel O'Donovan and Jane Becher, dated on the 2d of April 1763, John Becher, pursuant to the power in the settlement of '27th March 1740, appointed £2000, part of the £5000, to Jane Becher, to bear interest from 2d April 1763, at £5 per cent. An assignment thereof was made to trustees, upon trust to pay the interest to O'Donovan for his life, and after his death to pay over the principal for the younger children of the marriage, in such shares and at such times as Daniel O'Donovan should appoint. It was further declared that the principal sum should not be raised o ut of the real estates of John Becher during his life. Richard Becher, seised of an estate in tail male, expectant on the death of his father, attained 21 in 1768; and his father having occasion to borrow £2300, applied to Richard Wright for the purpose, and having obtained from him a loan to that amount, the father and son, on the 18th January 1768, joined in a mortgage in fee to Richard Wright for £2300. The mortgage extended over the lands comprised in the settlement of 27th March 1740. There was also a covenant by John and Richard Becher to suffer [482] a recovery to the use of Richard Wright, these securities being subject to redemption on payment of principal and interest. The recovery was to enure, after the payment of the mortgage-money, to such uses as John and Richard Becher should by deed appoint; and in default of, and until such appointment, to the uses of the settlement of 26th and 27th March 1740. A recovery, as of Easter Term 1768, was suffered accordingly. On the 17th September 1768, a deed, declaring further uses of the recovery, was executed, and the uses1 were declared to be to John Becher for life, to Richard Becher for life, to trustees to preserve, etc., with a power in Richard Becher to jointure, and then to the first and other sons of the said Richard Becher successively in tail male. There was a. proviso that any mortgage or judgment obtained previous to the execution of the deed was not to be affected thereby. On the 9th September 1769, a settlement was made on the marriage of Richard Becher with Letitia Hungerford, by which John and Richard Becher conveyed to trustees the lands comprised in'the settlement of 1740, and in the deeds of 18th January and 17th September 1768, to' hold to the use of John Becher for life, to Richard Becher for life, to trustees to preserve, etc., and (subject to a jointure of £300 per annum for Letitia Hungerford, and also to a term of 500 years for a provision of £5000 for younger children) to the first and other sons of the said Richard Becher successively in tail male; and in default of such issue to John and Richard Becher, according to their respective estates therein at the time of executing said deed. The deed of 9th September 1769 revoked the uses of the deed of 17th September 1768. The issue of the marriage of Richard Becher with Letitia Hunger-ford were John Becher, Respondent's father, the eldest son; Henry Becher and Frances Becher, younger children. The [483] two latter became entitled to £5000 as their portion under the marriage settlement of their parents. John Becher, Respondent's great grandfather, married, 2dly, Barbara Townsend ; and, 3dly, Barbara Hungerford; and on the 28th October 1769 made his will, by which he appointed, under the powers of the settlement of 27th March 1740, £2000, part of £3000 (remainder of £5000) to his daughter Elizabeth, and £1000 to his second son, Michael Becher. John Becher died on 19th February 1778, leaving 1518 bandon v. becheb [1835] m clark & finnelly. bis widow, his first and second sons, and his two daughters surviving. His will was proved by the Respondent's grandfather. Michael Becher died in November 1778, having, by his will dated 7th April 1778, bequeathed unto his brother, Richard Becher, his share of the sum of £5000, and appointed him executor. Daniel O'Donovan died in 1778, and by his will, dated 22d December 1777, appointed the £2000 to his younger children, equally to be divided between them share and share alike. Richard Becher (Respondent's grandfather) having survived his wife Letitia, married Mary Alleyn, and by deed, dated 25th August 1779, after reciting the settlement of the 27th March 1740, and the will of Michael Becher, Richard Becher, for the considerations therein mentioned, did grant and make over unto Dean French and Richard Boyle Townsend, the trustees, the said sum of £1000, upon trust that they should raise the same and pay it over to the sons or daughters of him the said Richard Becher and Mary Alleyn. Two sons and seven daughters were the issue of this marriage. The £1000 so due on the foot of the deed of mortgage of the 14th of October 1737, became, and is now, [484] vested in the Respondent's uncle, Henry Becher, and is a subsisting incumbrance, upon which the Respondent continues to pay interest. The lands of Lassanaroe, included in this mortgage, were sold to James Bernard for payment of a subsequent charge, as if this incumbrance did not exist. The £1000 appointed by John Becher tthe elder for his son Michael, is a subsisting charge upon the estates, and is vested in the surviving trustee named in said settlement of 25th August 1779, and the Respondent pays interest for the same. Henry Becher and Frances Becher, now Hungerford, who were born previously to 1777, and were the only younger children of Richard Becher and Letitia his...
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