The Right Hon. James Earl of Bandon, - Appellant; Richard Henry Hedges Becher, Esq., - Respondent
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1835 |
| Date | 01 January 1835 |
| Court | High Court of Chancery |
English Reports Citation: 5 E.R. 1388
COURT OF CHANCERY.
Mews' Dig. vii. 361, 363; ix. 309. S.C. 3 C1. & F. 479. See Shedden v. Patrick, 1854, 1 Macq. 594; and Ellis v. M'Henry, 1871, L. E. 6 C. P. 239.
[532] IEELAND. GOUKT OF CHANCERY. The Eight Hon. james Earl of bandon,-Appellant; eichaed heney hedges bechek, Esq.,-Respondent [1835]. [Mews' Dig. vii. 361, 363; ix. 309. S.C. 3 01. & F. 479. See Shedden v. Patrick, 1854, 1 Macq. 594 ; and Ellis v. M'Henry, 1871, L. E. 6 C. P. 239.] By indenture of marriage settlement in 1740, lands in Ireland were conveyed in trust for John Becher for life, remainder to his first and other sons, ; subject to a term of 99 years, in trust to raise by sale or mortgage £5000 for younger children, in such shares as John Becher should appoint. ; In 1763, John Becher, upon the marriage of his daughter Jane with 0'Donovan, appointed £2000, which was settled after the death of 0'Donovan upon the younger children of the marriage as he should appoint. In January, 1768, Eichard, eldest son of John Becher, borrowed of Eichard 1388 BANDON V. BECKER [1835] IX BLIGH N. S. Wright £2300; a mortgage was made of the lands in settlement, and a recovery suffered to enure after payment of the mortgage money to such uses as John and Richard Becher should appoint, and in default, etc., to the uses of the settlement of 1740. By deed executed in September, 1768, the uses were declared to John Becher for life; remainder to Richard Becher for life; remainder to the first and other sons of Richard, in strict settlement, with a power of revocation. In 1769, on the marriage of Richard Becher, a term of 500 years was created to raise £5000, portions of younger children. John Becher was the eldest son of this marriage, and there were two younger children, who became entitled to the £5000. John Becher the elder died in 1778, having by his will, under the powers of the settlement of 1740, appointed £2000 to his daughter Elizabeth, and £1000 to his son Michael, who [533] died, having bequeathed his share to his brother Richard, who on his second marriage settled that sum on the younger children of the marriage. O'Donovan died in 1778, having appointed the £2000 settled on his marriage among his younger children. In 1777, Elizabeth Becher married William Evans, and in 1779 they filed a bill in the Court of Exchequer in Ireland, against Richard Becher, and John, his son, then a minor, etc., praying payment of the sum of £2000, or that the lands comprised in the term might be sold, which was decreed. In 1781, Richard Wright filed a bill in the Court of Exchequer, against Richard and John Becher and others, praying payment of the mortgage money, etc., or a foreclosure and sale, which was decreed. In 1785, the younger children of O'Donovan filed a bill in theExchequer against John and Richard Becher and others, praying payment of the £2000, or a sale, which was decreed. Under the decrees in these causes, sales were effected, in which the lands were purchased in trust for, and conveyances made to, James Bernard. He settled the lands by deed in 1784, and died in 1790, having by his will secured the residue of his estate to his son. John Becher died in the lifetime of his father, Richard, who also died in 1825. In 1728, R. H. H., the son of John Becher, filed a bill in the Court of Chancery in Ireland, charging collusion and irregularity in the proceedings, and praying a declaration that the decrees and sales in the Court of Exchequer were fraudulently obtained ; that the plaintiff might redeem on payment of the sums paid by James Bernard, or that he might be compensated out of his assets, which latter relief was ordered by the decree and issues directed as to the value of the lands. This decree was affirmed on appeal. In 1740 a deed was executed on the marriage of John Becher, the Respondent's great grandfather, by which lands in the county of Cork, then subject to charges by way of mortgage, were settled and limited to John Becher for life, and, subject to a jointure and a term of ninety-nine years, to the first and other sons of John Becher [534] successively in tail male. The trusts of the term were to raise upon the death of John Becher £5000 for younger children, in such shares as John Becher should appoint. The issue of the marriage were Richard Becher, and Michael, Jane, and Elizabeth Becher. In 1763 Richard Becher, upon the marriage of his daughter Jane with Daniel O'Donovan, and in her favour, charged the lands comprised in the term with £2000 and interest, at 5 per cent., which was settled upon the younger children of the marriage as O'Donovan should appoint. In 1763 the lands comprised in the settlement of 1740 were mortgaged for £2300 to R. Weight, by John and Richard Becher, who covenanted to suffer a recovery of the lands, to enure after payment of the mortgage to such uses as John and Richard Becher should appoint; and they, by deed executed in 1768, declared the uses to John for life, remainder to Richard for life, remainder to the first and other sons of Richard Becher successively in tail male, with power of revocation. Upon the marriage of Richard Becher in 1769, by a deed operating as a revocation, the lands were settled according to the uses declared in the preceding deed, and a term 1389 IX B1IGH N. S. BANDON V. BKCHER [1835] was created for raising £5000 for the portions of younger children. The issue of this marriage were John Becher, the father of the Respondent, and Henry and Frances Becher, who became entitled to the £5000. John Becher, the great grandfather, died in 1778, having by his will, and under the power in the settlement of 1740, appointed £2000 to his daughter Elizabeth, and £1000 to his son Michael. Michael Becher died in 1778, having by his [535] will bequeathed £1000, his appointed share of the £5000, to his brother Richard Becher, who, upon a second marriage, settled the £1000 upon the children of that marriage, and that sum re mained a charge upon the lands. * In 1777 Elizabeth Becher married William Evans. Upon the death of John Becher the elder, William Evans and his wife filed a hill in the Court of Exchequer against Richard and John Becher, the grandfather and father of the Respondent, and against the parties interested under, and the surviving trustees of the terms created by the settlements of 1740, and 1768, and 1769, praying payment of their appointed portion of £2000 with interest, or that the lands for the remainder of the trust-term of ninety-nine years might be sold for that purpose. Upon this bill, after answers put in, issue joined, a decree for account, and report of the sum due to the Plaintiffs, it was ordered, upon further directions, that Richard Becher should, in six months, pay the sum reported due with interest at 6 per cent., or in default that the lands comprised in the term should be sold, that the demand of the Plaintiffs should be paid out of the proceeds, and the remainder, if any, paid to Richard Becher. In 1781 a bill was filed in the Court of Exchequer by Wright, the mortgagee, against Richard Becher, tenant for life, and John Becher, the Respondent's father, issue in tail in remainder, then a minor, and against Henry Becher, also a minor, in whom a charge upon the lands by way of mortgage for £1000 paramount the settlement of 1740 had vested, and other parties, praying payment of the money due upon the mortgage, or in default a foreclosure and sale; but all the parties except [536] Richard and John Becher were afterwards struck out of the bill; a decree was taken for account, and upon report of what was due to the Plaintiffs, it was ordered that Richard and John Becher should pay the amount, with interest and costs, in six months, or in default that the lands comprised in the settlement of 1740 and the mortgage deed should be sold to satisfy the mortgage, and the residue paid to the Defendants. Daniel O'Donovan died in 1778, having by his will appointed £2000 to his younger children, John, Jane, and Helen O'Donovan, minors, who by their next friend filed a bill in the Exchequer in 1785, against Richard Becher, and John, the Respondent's father, who was a minor, and others interested under the settlement of 1740, praying payment of the appointed portion of £2000 with interest, to which they had become entitled under the settlement made on the marriage of their father with Jane Becher, or in default that the same might be raised by sale of the lands for the residue of the term of ninety-nine years ; and upon decree for account and report of what was due, it was ordered that the lands should be sold and the amount paid, and the remainder of the produce paid to Richard Becher or those who should make a title to the purchaser. John Becher, the Respondent's father, died in 1820, being then remainder-man in tail. Richard Becher, the tenant for life, died in 1825. Thomas Alleyn became the personal representative of Richard Becher and John Becher the elder. Under the decrees in the three causes sales were made of the lands, which were purchased for James Bernard, the Appellant's grandfather, [537] and he by deed in 1784, settled part of the lands upon his son Francis, and the issue of the marriage. But these sales were afterwards by order of the Court made with the consent of James Bernard set aside; and new sales effected by arrangement among the parties. James Bernard, who became Earl of Bandon, upon his death left Francis, the remainderman in tail, his real and personal representative. John Becher, the remainder-man in tail, died in 1820, and Richard, the tenant for life, under the settlement of 1769, in 1825. In 1828, the Respondent filed a bill ip the Court of Chancery in Ireland against Francis Earl of Bandon, Mary Countess of Orkney as the heiress-at-law of the surviving 1390 BANDON V. BECHER [1835] IX BLIGH N. S, trustee of the settlement of...
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Earl of Bandon v Becher
...IN IRELAND. The Right Hon. the Earl of Bandon -Appellant Henry Becher, Esq. -Respondent. 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. Th......