William Henry Rochfort, - Appellant; Thomas Battersby, Elizabeth Browne, and Others, - Respondents
| Jurisdiction | England & Wales |
| Judgment Date | 27 March 1849 |
| Date | 27 March 1849 |
| Court | House of Lords |
English Reports Citation: 9 E.R. 1139
House of Lords
Mews' Dig. i. 335, 336, 364. S.C. 14 Jur. 229; 2 J. and Lat. 431. Commented on as to position of insolvent debtor in Motion v. Moojen, 1872, L.R. 14 Eq. 208; In re Leadbitter, 1878, 10 Ch.D. 391; Ex parte Sheffield, In re Austin, 1879, 10 Ch.D. 434; and see the two cases last cited explained in Bird v. Philpot (1900), 1 Ch. 822.
Appeal - Costs - Insolvent - Parties - Practice.
[388] WILLIAM HENRY ROCHFORT - Appellant; THOMAS BATTERSBY, ELIZABETH BROWNE, and Others,- Respondents [March 19, 22, 27, 1849J. [Mews' Dig. i. 335, 336, 364. S.C. 14 Jur. 229; 2 J. and Lat. 431. Commented 011 as to position of insolvent debtor in Motion v. Moojen, 1872, L.R. 14 Eq. 208 ; In re Leadbitter, 1878, 10 Ch.D. 391; Ex parte Sheffield, In re Austin, 1879, 10 Ch.D. 434 ; and see the two cases last cited explained in Bird v. Philpot (1900), 1 Ch. 822.] Appeal - Costs - Insolvent - Parties - Practice. An insolvent debtor has not such an interest in property assigned under the Insolvent Debtors' Acts, as to entitle him to enter into any litigation respect^ ing it, The circumstance that a person has been made a party to a suit in the Court below, if improperly so made, will not entitle him to appeal to this House against a decree made in that suit. W. R. was the owner in fee of certain estates in Ireland, which, on his marriage with E., he charged with' an annuity by way of jointure. W. R. had issue a son, W. H. R., and died. For some years the annuity fell into arrear. The widow (under the terms of the settlement) entered into possession of the estates, and received the rents. W. H. R. became insolvent, and the assignments, usual under an insolvency, were executed. W. H. R. afterwards mortgaged to B his interest in the estates, without giving notice to the mortgagee of his pre- * The practice had probably been adopted upon a construction of the following Standing Order. No. 119, formerly No. 194, 8th December, 1813.-" Ordered, That in all cases of appeals and writs of error, which were depending in this house, and the printed cases in which were delivered on or before the 24th day of February, 1813, the party or parties do respectively print an Appendix to the said cases delivered, and do therein set forth so much of the proofs taken in the courts below as they intend to rely on respectively on the hearing of the said causes, and which is not already set forth in the printed cases by them so respectively delivered; and that such Appendix do contain a reference to the documents where the same may be found, etc." 1139 II H.L.C., 389 ROCHFORT V. BATTERSBY [1849] vious insolvency. He gave, as further security, a bond and warrant of attorney, it being thereby provided that B., on redemption of the mortgage, should reconvey the lands, and sign satisfaction on any judgment which might have been entered up on the warrant of attorney. The mortgage was duly registered, and therefore, under the Irish acts, took priority over the assignments, which had not been registered. A bill for foreclosure or redemption was filed by B., the mortgagee, who made the jointress, the insolvent, and the assignees, parties thereto. The Court decreed the jointure to be the first charge on the estates, and the mortgage to come next, and directed accounts to be taken accordingly. The assignees did not appeal against this decree. The insolvent presented an appeal against it: Held, that he ought not to have been made a party to the suit, and therefore had no title to appeal against the decree. [389] An objection to the competency of an appeal ought to have been presented to the Appeal Committee, but was not noticed till the case came on for hearing at the bar of this House: the objection was in its nature fatal: The House therefore dismissed the appeal, but, because the objection had not been taken till so late a period, dismissed it without costs. This was an appeal against certain parts of two decrees of the Court of Chancery in Ireland, dated respectively 15th February, 1846, and 16th June, 1847, and made in a cause in which the respondent Thomas Battersby was the plaintiff, and the appellant and the other respondents were the defendants. The suit was instituted under the following circumstances: Elizabeth Browne, originally Elizabeth Sperling, had been three times married; first, in 1788, to William Rochfort, Esquire, of Portland Place, in the county of Middlesex, and the appellant was the only issue of that marriage. Mr. Rochfort died in 1798, and in 1801 his widow married the Reverend William Seville, who died in 1822, without issue, and in 1827 she married General Charles Browne, who died in 1836. By a settlement made on the first of these marriages, and dated 17th May, 1788, Mr. Rochfort conveyed his estates in Westmeath and elsewhere in Ireland, to the use of himself for life, and after his death, to the use that his intended wife should receive thereout an annuity of 480, for her jointure, in bar of dower and thirds, with remainder to trustees for ninety-nine years, without impeachment of waste, for the purpose of raising this annuity, remainder to the use of the first sou of the marriage in tail, and with divers remainders over. The settlement also contained a covenant by Mr. [390] Rochfort with the trustees, which (so far as it related to the jointure of 480 per annum) was as follows: - " That in case at any time from and after the decease of the said William Rochfort, by any arrear whatsoever, the clear yearly rents and profits of the premises com prised in the before-mentioned term of ninety-nine years, or intended so to be, should not for the time being be sufficient to pay and keep down and satisfy the yearly rent or annual sum of 480 thereinbefore secured to be paid unto the said Elizabeth Sperling, for her life, in case she should survive the said William Rochfort, by and out of the same, as and in part of her jointure as aforesaid, * * or if the person entitled to the said annual rent or yearly sum should not be paid the same according to the true intent and meaning of that indenture, that then and in every such case, the heirs, executors, or administrators of him the said William Rochfort, some or one of them, should and would out of their, his, or her own proper monies, make up and duly pay the said annual rent or sum of 480 unto the said Elizabeth Sperling, or her assigns, * * * * or so much thereof as should not have been paid at the times and in the manner and by the means thereinbefore expressed, and according to the true intent and meaning of that indenture." The rents and profits of the lands comprised in this settlement were never, before the year 1835, sufficient to pay the jointure or annual sum of 480. To make up the deficiency, an indenture was executed, dated the 15th of June, 1792, and made between Sir John Hadley D'Oyley of the first part; the said William Rochfort of the second part; and John Gustavus Lernaistre of the third part; by which Sir John Hadley D'Oyley, for a valuable consideration, [391] granted to Mr. Rochfort, his executors, etc., during the life of 1140 ROCHFORT V. BATTERSBY [1849] II H.L.C., 392 Mrs. Rochfort, and for her benefit, an annuity of 138 10s. of lawful money of Great Britain, charged upon certain lands and hereditaments therein mentioned. At the time of Mr. Rochfort's death, the aggregate rents of the settled estates charged with the jointure of 480, under the deed of 1788, amounted only to the sum of 290 per annum, late Irish currency, and such rents being insufficient to satisfy the jointure, the respondent Elizabeth Browne then entered into possession or receipt of the rents and profits of the whole of the settled estates, and she has ever since continued in receipt of such rents and profits, and in the management of the estates. By an indenture, dated the 5th of February, 1801, and made previously to the marriage of Mrs. Rochfort with Mr. Seville, reciting the settlement of May 1788, arid the deed of June 1792, and that the clear annual rent of the lands and hereditaments charged with the payment of the said annuity of 480 did not then, upon an average, exceed the sum of 240, Mrs. Rochfort assigned the annuity, and all arrears and future payments thereof, and all powers and remedies for recovering and enforcing the payment thereof, and also the said annuity of 138 10s., to two persons therein named, and also demised certain lands to the same persons for a term of years, upon a certain trust which has since ceased, and subject thereto it was declared, as to the annuity of 480, that the trustees "should, during the joint lives of Elizabeth Rochfort and Mr. Beville, receive and take so much of that annuity as the clear yearly rents and profits of the hereditaments charged with the payment thereof should from time to time be sufficient to pay and satisfy, and [392] should pay over the same when so received to Elizabeth Rochfort, and should stand and be possessed of and interested in the arrears then due and owing of the said annuity of 480, and also of and in all the arrears which should thereafter accrue or become due of the same annuity, in consequence of the rents, issues, and profits of the lands and hereditaments charged therewith being insufficient to answer the same;" upon trusts, relating to the appellant, and to the children of the intended marriage, that never happened. In the year 1819, .the appellant, being tenant in tail in possession, suffered a recovery of the settled estates charged with the jointure of 480 per annum, and by the deed to lead the uses of such recovery, dated the 18th June, 1819, and made between Mr. Belville and his wife of the first part; the appellant of the second part; and other persons of the third and fourth parts...
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