Elizabeth Warburton, - Plaintiff (in Error); James Loveland, Lessee of George Ivie, Henry Ivie, and Others, - Defendant (in Error)
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1832 |
| Date | 01 January 1832 |
| Court | High Court of Chancery |
English Reports Citation: 5 E.R. 499
COURT OF CHANCERY.
S. C. 2 Dow & C1. 480; and, in Court below, 1 Huds. & Brooke, 623. The rule as to construction of statutes, stated by Burton J. (1 Huds. & Brooke, at p. 648), was adopted by Lord Wensleydale in Abbott v. Middleton, 1858, 7 H. L. C. 115; and again in Thellusson v. Rendlesham, 1859, ib. at p. 519. See also, on the same point, Reed v. Braithwaite, 1871, L. E. 11 Eq. 520; Rhodes v. Rhodes, 1882, 7 A. C. 205; Bradlaugh v. Clarke, 1883, 8 A. C. 384; Hill v. East and West India Dock Co., 1884, 9 A. C. 464.
VOLUME VI. IEELAND. COUET OF CHANCERY, elizabeth warburton,-Plaintiff (in Error); james loveland, Lessee of george ivie, henry ivie, and Others,-Defendant (in Error) [1832]. [S. C. 2 Dow & Cl. 480; and, in Court below, 1 Huds. & Brooke, 623. The rule as to construction of statutes, stated by Burton J. (1 Huds. & Brooke, at p. 648), was adopted by Lord Wensleydale in Abbott v. Middleton, 1858, 7 H. L. C. 115; and again in Thellusson v. Rendlesham, 1859, ib. at p. 519. See also, on the same point,, Reed v. Braithwaite, 1871, L. E. 11 Eq. 520; Rhodes v. Rhodes, 1882, 7 A. C. 205; Bradlaugh v. Clarke, 1883, 8 A. C. 384; Hill v. Hast and West India Dock Co., 1884, 9 A. C. 464.] B. being possessed of a term in lands for so many years as he should live, with remainder for the residue of the term to E., his daughter, upon the mar- ' riage of E. with W. the term was assigned by B. and E. to trustees, in trust for B. during his life, and upon his death to permit the husband to receive the rents, etc. during his life, and then for the wife and children in the usual course of marriage settlement. This deed of assignment was not registered. W. being in possession under the trusts of the settlement, after the death of B. demised the lands to K., for 345 years, at a rent of £345, and the indenture of lease was duly registered, and the interest under this demise was afterwards transferred from K. to I. by a deed of assignment, which was not proved to have been registered. Upon special verdict, stating these facts, it was held that the lease made by W. to K., being registered, was, under the effect of the Irish Eegistry Act, [2] 6 Anne, c. 2, valid against and preferable to the unregistered marriage settlement, and that the interest of I., under the assignment from K., although unregistered, was also valid, and preferable to the settlement. Eichard Christmas, being seised in fee of the town and lands of Shanbough, situate in the barony of Ida, Igram, and Ibercon, and county of Kilkenny, by indenture of lease bearing date the 1st of March, 1713, demised the said lands for the term of 999 years, to Thomas Grubb, who entered into possession. Thomas Grubb, by his will, appointed Mary Grubb his executrix, who, after the death of Thomas Grubb, proved the will, and as such executrix entered into and was possessed of the lands for the residue of the term. Mary Grubb, by indenture of demise, bearing date the 26th of March, 1748, demised the lands to John Allen for the term of 399 years, and John Allen, after the execution of the lease, entered into the possession of the lands. The interest in the last-mentioned lease afterwards, by mesne assignment, became 499 VI BLIGH N. S. WARBURTON V. LOVELAND [1832] vested in Benjamin Batt for so many years of the term as lie should live, and the residue of the term after the death of Benjamin was vested in Elizabeth Batt, his daughter. On the marriage of Elizabeth Batt with Bartholomew Boyd Warburton, by indenture of settlement dated the 24th of July, 1779, and made between Benjamin Batt and Elizabeth Batt, his eldest daughter, of the first part; Bartholomew Boyd Elliott, and the Reverend Robert Alexander, [3] of the second part; and Bartholomew Boyd War-burton of the third part; Benjamin Batt and Elizabeth Batt, in consideration of the intended marriage, assigned the said lands and their respective terms therein to Bartholomew Boyd Elliott and Robert Alexander for the residue of the demised term therein, in trust, to permit Benjamin Batt to receive the rents and profits of the lands during the term of his life, and after his decease to permit Bartholomew Boyd War-burton to receive the rents and profits of the lands during his life; and in case Elizabeth, his intended wife, should survive Bartholomew Boyd Warburton, then, after his decease, to permit the said Elizabeth to receive the rents and profits thereof during the term of her life; and after the decease of Bartholomew Boyd Warburton and Elizabeth his wife, in trust, to permit the first son of the marriage to receive the rents and profits until he should arrive at the age of twenty-one years, and then to convey the lands to such first son absolutely; and in case there should be no issue of the marriage, then the lands and the interest therein should become the sole property of the survivor of them the said Bartholomew Boyd Warburton and Elizabeth, his intended wife. This deed of settlement was not registered. After the execution of the settlement the marriage took effect, and Benjamin Batt, during his life, received the rents and profits of the lands of Shanbough under the deed of settlement. After the death of Benjamin Batt, Bartholomew Boyd Warburton entered into possession of the lands, and received the rents and profits. Bartholomew Boyd Warburton being so in the possession of the lands, by indenture dated the [4] 26th of May, 1800, demised to George Kough and Thomas Kough the lands of Shanbough, for the term of 345 years, at the yearly rent of £345 19s., being at the rate of 16s. per acre; and the indenture of lease was on the 10th day of June, in the year 1800, duly registered in the proper registry-office in Ireland. George Kough and Thomas Kough, under this indenture of lease, entered into possession of the lands; and, by indenture of assignment, bearing date the 9th of April, 1813, George Kough and Thomas Kough, in consideration of the sum of £3000, conveyed their interest under the lease to George Ivie and Henry Ivie, two of the Lessors of the Defendant in error, who thereupon entered and were possessed of the lands. There was no proof that this deed of assignment was not registered. George and Henry Ivie continued in the possession of the lands, under the deed of assignment, till the time of the death of Bartholomew Boyd Warburton, which happened in the year 1823. Upon the death of Bartholomew Boyd Warburton, Elizabeth his widow, the Plaintiff in error, claiming to be entitled to the lands under the deed of settlement of the 24th of July, 1779, brought an ejectment in the Court of King's Bench in Ireland, for recovery of the possession of the lands, and laid demises therein in her own name and in the names of the trustees of the settlement of 1779, and in the names of the several other persons in whom the legal estate in the premises might be considered to be outstanding. The cause was tried in 1823, when a verdict was given for the Plaintiff in error. [5] In Michaelmas term, 1823, the Defendants in error having obtained a conditional order to set aside the verdict, the matter was argued before the Court of King's Bench in Ireland, and that court, on the 26th of November, 1824, allowed the cause shewn against the conditional order, and judgment was thereupon entered for the Plaintiff in error, who took possession of the lands under a writ of habere facias possessionem. The Defendants in error being dissatisfied with the judgment of the Court of King's Bench, in Hilary Term, 1825, brought their ejectment in the Court of Exchequer in Ireland, to recover the possession of the lands, which ejectment was tried in 1825; when it was agreed by the counsel concerned for the parties on each side, that a special verdict should be entered, which was accordingly done. The special verdict set forth the facts as before stated ; and the matter having been 500 WARBtJRTON V. LOVELAND [1832] VI BLIGH N. S, argued upon the special verdict before the Court of Exchequer in Ireland, that court, on the 13th of June, 1825, gave judgment thereon for the Defendants in error, who thereupon entered again into possession of the lands, under a writ of habere facias The Plaintiff in error being dissatisfied with this judgment of the Court of Exchequer, in Trinity term, 1825, brought her writ of error returnable into the Exchequer Chamber in Ireland, assigning general errors, and the Defendants in error having joined issue on the writ of error, the Court of Exchequer Chamber in Ireland, upon the 26th of June, 1828, affirmed the judgment of the Court [6] of Exchequer: whereupon Elizabeth Warburton brought her writ of error returnable in Parliament, and assigned for errors the several matters on which she insisted before the Court of Exchequer Chamber in Ireland, to which George Ivie and Henry Ivie rejoined that there was no error. The case was argued first in March, 1831, by Sir E. Sugden and Mr. J. P. Abbot, for the Plaintiff in error, and by Mr. and Mr. Swann, for the Defendant in error; and again before the Judges in April, 1831, by Sugden for the Plaintiff, and Knight for the Defendant. For the Plaintiffs in error. (April 13, 1831.) The case turns upon the third, fourth, and fifth sections of the Irish act, 6 Anne, c. 2. This act, unlike the English act, 2 & 3 Anne, c. 4, contains no provision making wills void for defect of registration, but only deeds. In England, therefore, if an estate is devised, and not registered, the heir may sell; and the purchaser registering, ousts the devisee : but in Ireland the devise is good, though not registered. There is nothing in either act enabling registration of titles gained, by devolution of law. Whether a title gained by marriage comes within that description, may be doubtful; marriage being the act of the party. Nothing in this act...
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