Robert Simpson, - Appellant; James O'Sullivan, Honora O'sullivan, and John Keane, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 20 July 1840 |
| Date | 20 July 1840 |
| Court | House of Lords |
English Reports Citation: 7 E.R. 1179
House of Lords
Mews' Dig. i. 103, 356; x. 1268, 1574; xiv. 1374; S.C. West, 332; and see 3 Dr. and War. 446, and Dr. 89. See Hinds v. Hinds, 1850, 2 Ir. Ch. R. 230; Makings v. Makings, 1860, 1 De G. F. and J. 355; Balfour v. Cooper, 1883, 23 Ch. D. 472, as to interest; on point as to priority of powers, cited with approval in In re Creagh, 1890, 25 L. R. Ir. 140.
[550] ROBERT SIMPSON,-Appellant; JAMES O'SULLIVAN, HONORA O'SULLIVAN, and JOHN KEANE,-Respondents [July 20, 1840]. [Mews' Dig. i. 103, 356; x. 1268, 1574; xiv. 1374; S.C. West, 332; and see 3 Dr. and War. 446, and Dr. 89. See Hinds v. Hinds, 1850, 2 Ir. Ch. R. 230 : Makings v. Makings, 1860, 1 De G. F. and J. 355; Balfowr v. Cooper, 1883, 23 Ch. D. 472, as to' interest; on point as to priority of powers, cited with approval in , In re Creagh, 1890, 25 L. R. Ir. 140.] By a settlement made on the marriage of A., certain premises were assigned to trustees for his use for life, and power was also given to him " to raise by deed, mortgage, or any other writing, a sum of £1000, to be applied to any purpose that the said A. should please, but the same was not to be raised by way of sale of the said lands;" and A.'s wife had a jointure secured on these premises. A. raided the £1000 by mortgage of the settled premises, and afterwards became bankrupt. His assignee sold his interest as such assignee in the settled premises to B., who also- purchased the mortgage. A. afterwards died.- Held, that by this assignment of A.'s estate and interest in the premises, B. became entitled to hold the mortgage as a first charge upon the estate, as well after as before the death of A., and until, by payment of principal and interest, it should be satisfied. The Court below having directed an inquiry into the value of the estate at the time of the assignment, and the amount of B.'s interest therein, this House reversed the order directing such inquiry, and, without making any order, remitted the case with the declaration of what were the nature and extent of B.'s rights, leaving it to the Court below to carry that declaration into effect. In January 1808, James O'Sullivan the elder was possessed of certain lands for the residue of a term of 999 years, and on that day executed a settlement of them on the marriage of his son James O'Sullivan the younger, with the Respondent Honora O'Sullivan. The trustees of the settlement, John Keane and William Ferguson, were to hold the premises for the residue of the term on trust for James O'Sullivan the younger, for life, and after his death to pay £100 yearly to- the said Honora O'Sullivan during her natural life for her jointure, and subject thereto, to the use of the issue male of the said James and Honora; and for want of such issue male, to their issue female, and for want of issue of their bodies, to the said J. O'Sullivan [551] as his absolute property. And it was by the indenture of settlement agreed that the said James O'Sullivan should be at liberty to raise by deed, mortgage, or any other writing, a sum of £1000, to be applied to any purpose that he should please, in case the said marriage should take effect, but that the same was not to be raised by way of sale of the said lands, tenements and hereditaments aforesaid. This settlement was duly registered in 1809. 1179 VII CLARK & FINNELLY. &MPSON V. o'SULLIVAN [1840] By indenture of mortgage, dated 24th of January 1811, and made between the said James O'Sullivan the younger of the one part, and Quintin Hamilton of Liverpool of the other part, after reciting the said indenture of the 25th of January 1808, and in particular the provisions thereof whereby it was stipulated that the said sum of £1000 was not to be raised by sale of the said lands and premises; and also reciting that J. O'Sullivan, on the 1st of January then last, stood indebted to Quintin Hamilton, and the house trading under the firm of Hamilton, Crowden, and Co., of Liverpool, merchants, in a sum of £1500 sterling, for money lent, advanced and paid by Quintin Hamilton and his house for the use of James O'Sullivan; and that, in order to secure the principal and interest then due, and all interest, etc. thereafter to grow due, he the said J. O'Sullivan had agreed with Hamilton, on behalf of the company, to assign to Hamilton the premises aforesaid, and all his estate, etc. therein by virtue of his marriage settlement or otherwise, and to1 assign and appoint to Hamilton, as a further and collateral security, the said sum of £1000, which he had power to raise by virtue of the settlement, to be applied in part payment of the sum of £1500 and the interest, etc., and also to pass his bond, with warrant of attorney for confessing judgment thereon, to Hamilton, [552] in the penal sum of £3000, conditioned for the payment of the £1500, with interest at £6 per centum per annum, by way of further security: -It was by the indenture witnessed, that in pursuance of the said agreement, and to carry the same into- effect, James O'Sullivan did grant and assign to Hamilton, his executors, etc. the said premises, subject to redemption, etc.; and that in order the better to secure the payment of the £1500, and interest, etc., James O'Sullivan, by virtue of the power and authority by the said settlement in him vested, did grant, charge, etc., by way of mortgage, the sum of £1000 to...
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