Maria Chinnery (a Lunatic, by her next Friend), - Appellant; Eyre Evans-Respondent
| Jurisdiction | UK Non-devolved |
| Judgment Date | 28 July 1864 |
| Date | 28 July 1864 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 1274
House of Lords
Mews' Dig. ix. 220, 221, 225, 284, 292. S.C. 4 N.R. 520; 10 Jur. N.S. 855; 11 L.T. 68; 13 W.R. 20. Applied in Cockburn v. Edwards, 1881, 18 Ch.D. 456; Lewin v. Wilson, 1886, 11 A.C. 644; and Astbury v. Astbury (1898), 2 Ch. 111. Distinguished in In re Frisby, Allison v. Frisby, 1889, 43 Ch.D. 116. And see also Pears v. Laing, 1871, L.R. 12 Eq. 55; Harlock v. Ashberry, 1881-82, 18 Ch.D. 234; 19 Ch.D. 545.
Limitations, Statute of - Mortgagee - Receiver - Assignment of Outstanding Terms.
rn. ' ò [115] MARIA CHINNERY (a Lunatic, by her next Friend),-Appellant; EYRE EVANS- "Respondent [July 8, 11, 12, 28, 1864]. [Mews' Dig. ix. 220, 221, 225, 284,- 292. S.C. 4 N.R. 520; 10 Jur. N.S. 855; 11 L.T. 68 ; 13 W.R. 20. Applied in Cockburn v. Edwards, 1881, 18 Ch.D. 456 ; Lewin v. Wilson, 1886, 11 A.C. 644; and Asfbwy v. Astbwy (1898), 2 Ch. 111. Distinguished in In re Frisby, Allison v. Frisby, 1889, 43 Ch.D. 116. And see also Pears v. Laing, 1871, L.R. 12 Eq. 55; Harloek v. Ashberry, 1881-82, 18 Ch.D. 234; 19 Ch.D. 545.] Limitations, Statute of-Mortgagee-Receiver-Assignment of Outstanding Terms. Payment of interest on an Irish mortgage made by a receiver appointed under the 11 and 12 Geo. 3, c. 10 (Ir.), over the estates mortgaged, is, within the terms of the 40th section of 3 and 4 Will. 4, c. 27, payment by " an agent " of the party liable. The words in the 40th section " by the person by whom the same shall be payable, or his agent," apply equally to the making of a pa.yment and the signing of an acknowledgment. M. was possessed of estates in three counties, Cork, Kerry, and Limerick. In 1776 he mortgaged them to F. The interest on the mortgage was not regularly paid, and, on a petition presented by F., under the 11 and 12 Geo. 3, c. 10 (Ir.), a, receiver was appointed. In form, his aippointment embraced the three estates; in fact, he never entered into possession of any but the Limerick estate, from òwhich alone he took the money necessary to- keep down the interest on the mortgage. M. afterwards (without any knowledge of the matter on the part of F.) sold the Cork and Kerry estates to C., and certain outstanding terms and judgments were assigned and conveyed to a trustee for C. to protect the title. After the lapse of nearly twenty years, since the last payment made by the receiver, F. claimed to have a sale of all the estates included in the original mortgage in order to cover arrears of interest: Held, affirming the judgment of the Court below, that the payment by the receiver out of the rents of the Limerick estate, was a payment which in law must be considered as made by the mortgagor in respect of the mortgage debt, and therefore prevented the Statute of Limitations operating as a bar to the demand as to any of the estates comprised in the mortgage. The assignment, to a trustee for the purchaser of an estate, of outstanding terms affecting it, and of judgments on which elegits had been issued, does not con- 1274 CHINNERY V. EVANS [1864] XI H.L.C., 116 stitute the purchaser an incumbrancer within the meaning of the 42d section of the 3 a,nd 4 Will. 4, c. 27, so as to prevent the operation of the statute on the claim of the mortgagee: Held, therefore, reversing the judgment of the Court below, that the mortgagee was only entitled to demand six years' arrears of interest up to the filing of his petition in which the holder of the estates sold was, for the first time, made a party to the suit. In 1775 Sir Thomas Tilson Deane, Baronet (afterwards created Lord Muskerry), was seised in fee of cer-[H6]-tain estates called Stonefield and Crinallon, in the barony of Muskerry and county of Cork (subject to two jointures of £700 and £300 per annum in favour of his mother), and also- of certain other lands called Clydamore and Coomacullen, in the county of Kerry, and of other lands in Limerick. On the 1st January 1776 he included all those lands in mortgage executed to Grace Freke, to secure a sum of £8000 with interest at the rate of 5i per cent per annum. This mortgage was at once registered. Mrs. Freke died in the year 1782, having by her will appointed the money due on the mortgage between her two sons, W. E. and R. E. Freke, and her two daughters Anne and Kitty, the latter the wife of George Putland. In 1783 the lands in Kerry were sold by Lord Mus-[117]-kerry to one Crosbie Morgell without any reference to the mortgage, and the conveyances on this sale, were duly registered. In May l784 a petition was presented by the executors of Mrs. Freke to the Court of Exchequer in Equity setting forth the mortgage, and specifically naming the lands in the three counties, and then stating that there was a sum of £720 due for interest on the said mortgage up to the 1st January 1784, and praying for the appointment of a receiver over the mortgaged lands.* Cause was shown against this petition on behalf of Lord Muskerry, and on the 9th July 1784 the order for a receiver over the lands described in the petition was made absolute. Walter Sweetman was appointed receiver, and by an order of the 19th September 1784, " the several tenants of the lands and premises in the petition mentioned," were ordered to pay their rents to him. No accounts were ever rendered by Mr. Sweetman, and in 1800 Mr. Mounsell was appointed to succeed him, and filed his first account in November 1801, from which, and from subsequent accounts, it appeared that the receiver, Dates. 1776. 1 January. Mortgage to Grace Freke, of lands in Cork, Kerry, and Limerick. 1783. Lands in Kerry sold by Lord Muskerry to Morgell. 1784. Mrs. Freke's executors petition for a receiver-appointment, on this peti- tion, of a receiver over all the estates mentioned in the mortgage. 1789. Demise of the lands in Cork by Lord Muskerry to Chinnery. 1790. Assignments to Chinnery of charges created on the Cork and Kerry estates prior to the mortgage of 1776 (no mention in the sale of 1783, or the demisor of 1789, of the mortgage of 1776). 1792. Sale by Morgell to Chinnery of the Kerry estates. 1853. Petition by Mrs. Freke's representatives, who knew nothing of the sale of the lands of Cork and Kerry, against Lord Muskerry, for sale of the lands comprised in the mortgage of 1776. Sale ordered. 1856. Amended and supplemental petition-all parties then, brought before the Court. * This petition was presented under the 11 and 12 Geo. 3, c. 10 (Ir.), by which it is enacted, " that in all cases where one and a half year's interest shall be due, a court of equity, upon application in manner hereinafter mentioned, shall appoint a receiver to receive such parts of the rents of the mortgaged premises as shall be sufficient to pay such arrears of interest, and also the accruing interest of the said mortgage money from time to time, one half year when the other shall become due, until the whole of such interest due on the mortgage shall be discharged." 1275 XI H.L.C., 118 CHINNERy V. EVANS [1864] though in form appointed over all the mortgaged lands, had only in reality been in receipt of the rents from the lands of the county of Limerick, which did not fully cover the amount of interest, but left an annually increasing arrear. [118] Other receivers were afterwards appointed, but no rents of the lands in Cork or Kerry appeared ever to have been received on account of the interest on this mortgage debt. In January 1789 Lord Muskerry demised the lands in Cork to Broderick Chin-nery (to whom he was largely indebted), in fee farm. This deed was immediately registered. By deeds bearing date in April 1789, and November and December 1790, Broderick Chinnery (who had at that time become the purchaser of the Kerry estate, and also of the Cork estate previously demised to him), obtained an assignment to a trustee.on his behalf, of the jointure charges of Lady Deane, and of certain judgments, and an outstanding term given to secure the arrears of jointure affecting the lands in the counties of Cork and Kerry, and of the rente on the leases previously made to himself by Lord Muskerry. There was a covenant to keep on foot and unsatisfied a mortgage of 1699, and four judgments thereon, on three of which elegits had been issued at dates between 1779 and 1789, the object stated being to protect the interests of Chinnery. There were the usual covenants for title', but there was no reference whatever to the mortgage of 1776. Broderick Chinnery, who was afterwards created a baronet, continued in uninterrupted possession of these lands till his death in May 1808, and no payment on account of the mortgage of 1776 nor any acknowledgment of it was ever made by him. His son succeeded to the property, was found a lunatic in 1833, and from that time until his death in 1858 his estates were under the control of a receiver appointed by the Court of Chancery. In July 1853 a petition was presented on behalf of Anne Dorothea Putland, the person interested under the [119] mortgage, alleging that large arrears of interest were due, and praying for a sale of the lands comprised in the mortgage of 1776, which lands were described as in the possession of Lord Muskerry. This petition was not served either on Chinnery or on his committee or receiver. In July 1853 an order Nisi was made directing a sale of all the lands comprised in the mortgage of 1776. This order was in November 1853 made absolute on a consent signed by Mr. Howe, the solicitor for Lord Muskerry. In May 1855, Mrs. Putland presented an amended petition, correcting some mistakes as to the amount of sums due on the mortgage, and stating that the receiver appointed under the Mortgage Act (11 Geo. 3, c. 10, Ir.) continued over the Limerick lands, and that no release of the Cork .and Kerry lands had been discovered, and that none such existed. Another petition, amended and supplemental, was presented in January 1856, introducing for...
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