Cormick v. Trapaud and Another [1818] UKHL 6_Dow_60

UKHL
Cormick v. Trapaud and Another
[1818] UKHL 6_Dow_60
REPORTS OF APPEAL CASES IN THE HOUSE OF LORDS, During the Session , 1818.58 Geo. III.IRELAND.APPEAL FROM THE COURT OF CHANCERY.

No. 3

Cormick Appellant v. Trapaud and Another Respondents

Feb. 6 , March 16 , June 5 , 1818 .(F. C. having died without issue) enters upon the estate, suffers a recovery, and dies, leaving M. C. the Appellant, his eldest son.MORTGAGE — VOLUNTEER.M. Cormick , first tenant in tail under the will of his father, R. C. deceased (by which will estates in tail male in remainder were given to the devisor's other sons, F. C. and T. C.) before suffering a recovery, executes a settlement on his marriage, by which he limits an estate for life to himself, with remainder to the first and other sons of the marriage, in tail male, remainders to his brothers, F. C. and T. C. for life, with remainders to their first and other sons in tail male:—and afterwards suffered a recovery, mortgaged the settled estate to R. Plaistow, and died without issue male. C. Cormick, son of T. C.

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Bill of foreclosure by Plaistow resisted by M. C. the Appellant—the question being, whether C. Cormick, the Appellant's father, was entitled under the will of R. C. or only as a volunteer under the settlement, by M. C. the first tenant in tail. Foreclosure decreed below. Argued in Dom. Proc. that as the settlor had not the fee, but was only tenant in tail at the time of the settlement executed, the provisions of the statutes of Elizabeth, enacted for Ireland by 10 Car. 1. sess. 2. cap. 3. did not apply to this case. Answered that there was no substantial distinction between tenant in fee and tenant in tail, who had it in his power at any time to acquire the fee; that the brothers and their sons took new estates under the settlement, which were voluntary, and void as against the subsequent mortgagee for val. con. So held, and decree affirmed .Michael Cormick , who was tenant in tail of certain estates in Ireland under the will of his father Richard Cormick, by which estates tail in remainder were given to his two younger brothers, before suffering a recovery, made a settlement after his marriage, pursuant to previous articles, by which, after limiting an estate for life to himself, remainder in tail to the first and other sons of the marriage, he gave estates for life to his brothers, remainder to their first and other sons in tail; and then mortgaged the settled estates to Richard Plaistow, who filed his bill to foreclose. Fraud in obtaining the mortgage was alleged but not proved; and the substantial question was, whether the mortgage was valid as against the real representative of one of the brothers, and entitled to the protection of the statute

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The case.Will of Richard Cormick, 1737.The cause was heard in the Court of Chancery, in June, 1811, and re-heard in December, 1811, when the Lord Chancellor ordered a case to be made for the opinion of the Court of Common Pleas, stating the circumstances as follows:—
“Richard Cormick being seized in fee of divers lands in the county of Mayo, and particularly the lands as hereinafter stated in mortgage in this cause to said Richard Plaistow, on or about the 6th day of November, 1737, made his will, duly executed for passing real estates, and by the said will devised, amongst other things, as follows : ‘My will is, that, after my debts and legacies be paid, that all my real and personal estate shall go and descend to my eldest son, Michael Cormick, and the issue male of his body for ever; and, for want of such issue, my will is, that ail said estate shall go to my second son, Francis Cormick, and his issue male for ever; and, for want of such issue in him, my will is, that the whole estate shall go and descend to my third son, Thomas Cormick, and his issue male for ever: the eldest son of such of my sons

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“And that under the description of the said testator's real estate, the said mortgaged lands were comprehended.
That said Richard afterwards, that is to say, in the month of —, in the year 1738, died so seized of the said lands, without revoking or altering his said will, leaving issue, three sons; that is to say, the said Michael Cormick, his eldest son and heir at law; the said Francis Cormick, his second son; and the said Thomas Cormick, his third and youngest son ; and upon the death of the said testator the said Michael entered into possession of the said lands, and under the limitations of the said will continued seized thereof until his death.Marriage articles, and marriage of Michael Cormick, 1743.That said Michael Cormick, on or about the 6th day of March, 1743, intermarried with Mary Blake, the only daughter of Xaverius Blake; and previous to such marriage certain articles of agreement, under the seals of the parties thereto, bearing date the 6th day of March, 1743, were entered into and executed in contemplation of such marriage, between the said Michael Cormick, by the

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That in Hilary Term 1743, the said Michael Cormick levied a fine of the said mortgaged lands and others, sur conuzance de droit come ceo , &c. in consideration of a sparrow hawk, to one Roger Palmer, on which proclamations were duly made pursuant to the statute; pro ut said fine and proclamations, &c.Settlement. 1748.After the said marriage, that is to say, on the 8th day of October, 1748, a certain deed of settlement was executed between the said Michael of the first part; and Roger Palmer and Walter Blake of the second part; George Browne and Francis Palmer of the third part; and the said Xaverius Blake of the fourth part, and which deed was signed and sealed by the said Xaverius Blake and Michael Cormick ; whereby, after reciting the said articles of the 6th of March, 1743, in part, and (amongst other things), that then it appeared from the situation of the said Michael's affairs, that in order to raise money to pay his debts, he must sell part of his said real estate, but was possessed of some valuable leasehold interests

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Recovery, 1757.That afterwards, that is to say, in Michaelmas Term, in the thirtieth year of the reign of King

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Mortgage, 1777.That the said Michael Cormick afterwards, that is to say, by deeds of lease and release bearing date respectively on the 15th and 16th of August, 1777, after reciting that the said Richard Plaistow did as of Trinity Term, 1775, obtain two separate judgments in the Court of King's Bench against said Michael Cormick, each for the sum of 3844 l . debt, besides costs; and that there was then due to said Richard on the said recited judgments for principal, interest, and costs, the sum 4354 l . 7 s . over and above all just and fair allowances; and after further reciting that the said Michael Cormick then stood further indebted unto the said Richard in the sum of 865 l . 17 s . 4 d . sterling, said sums making in the whole the principal sum of 5220 l . 6 s . 4 d ., and that said Michael Cormick was willing and desirous to give the best security in his power unto the said Richard for the due payment of said 5220 l . 6 s . 4 d ., and for that purpose had proposed to grant his real and freehold estates in said county of Mayo in mortgage to the said Richard, for the better securing

Footnote

* By the Irish Act of 21 Geo. 2. c. 11. § 8. a recovery is good after twenty years, if the persons joining had a sufficient estate, though the deed making a tenant to the writ be lost.

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Notice.And that at and before the time of the execution of the last-mentioned deed, the said Richard Plaistow had actual notice of the said marriage articles of 1743, and of the said settlement of 1748; pro ut the letters.That in the month of August, 1779, the said Michael died without issue male; and the said Francis Cormick died in the life-time of the said -Michael without issue; and the said Thomas Cormick also died in the life-time of the said Michael, but left issue one son, Charles Cormick, who entered into all the said lands; and the said Charles Cormick having died, leaving Michael Cormick his eldest son and heir at law, the said Michael Cormick, who is in possession of the said lands, claims

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The question.And the only question is, whether, under the circumstances aforesaid, the deeds of the 15th and 16th of August, 1777, are a good and valid security for the principal money and interest secured thereby, as against the persons claiming under the limitations contained in the said deed of the 8th of October, 1748, and in and by the said will of the said Richard Cormick.”June 10, 1812. Certificate of the Court of C. P.The said case was argued before the Court of Common Pleas in Ireland, who, on the 10th of June, 1812, delivered their unanimous opinion in the affirmative of the question, and sighed the following certificate:
“We have heard this cause argued by counsel, and are of opinion, that under the circumstances of this case, the mortgage deeds of the 15th and 16th of August, 1777, are a good and valid security for the principal money and interest secured thereby, as against the persons claiming, under the limitations contained in the deed of the 8th of October, 1748, and in the will of Richard Cormick, in the case mentioned. Norbury, L. Fox, E. Mayne, W. Fletcher ”
July 9, 1812. Decree for an account.The said cause came on to be heard before the Lord Chancellor, on the 9th of July, 1812, on the

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June 24, 1813. Master's report.The Master by his report, bearing date the 13th day of June, 1813, certified, that he found that the said Michael Cormick, deceased, was at the time of his death seised, as of fee or freehold, of the several lands and hereditaments therein specified, situate in the counties of Mayo, Roscommon, and Westmeath (which included the mortgaged premises), and he certified, that there was due to the Plaintiffs for principal, interest, and costs, on the foot of the mortgage deeds of the 15th and 16th days of August, 1777, in the pleadings mentioned, the sum of 14,581 l . 4 s . 5 d. , and he stated that no proof of any other debt had been laid before him.It does not appear that any account was taken of the sums advanced after the date of the mortgage,

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This report was duly confirmed by an order hearing date the 14th day of July, 1813.July 21, 1813. Decree on report.On the 21st day of July, 1813, the cause came on to be heard before Lord Manners, on the report and merits; when his Lordship ordered that the register should compute interest as usual; the gross sum, with interest from the confirmation of the report, to be paid in three months, or a foreclosure and sale to take place ; the sale in the first instance to be of the mortgaged premises ; and if the produce thereof should be insufficient, then a sale to be had of a competent part of the residue of the lands in the report mentioned, and that the Plaintiffs and Defendants should have their costs out of the funds to arise by such sales.From this decree Michael Cormick, the son of Charles, appealed :—the executors of Plaistow, he having died in the course of the proceedings, being the Respondents.Feb. 6, 1818.9 East. 59.Mr. Wetherell and Mr. Shadwell (for Appellant). The substantive question is whether the limitations to the brothers under the settlement of 1748 were voluntary, and, consequently, fraudulent and void as against the mortgagee by the statutes 13 Eliz. cap. 5. and 27 Eliz. cap. 4.—the provisions of which were subsequently enacted for Ireland by JO Car. 1. sess. 2. cap. 3. so that the law is perfectly the same in both countries. It has been doubted whether the mortgagee gave a proper consideration for the mortgage,

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As to the other point the bill is filed by the mortgagor simply on his own case, and not on behalf of himself and the other creditors ; and there was nothing to warrant the decree as to the other creditors and legatees.Sir S. Romilly and Mr. Hart (for the Respondents). The Court of Chancery was not bound by the opinion of the Court of Common Pleas. But it cannot be conceded that the opinion was of no weight, and that the Judges overlooked the only question in the cause. Cases are as fully and ingeniously argued in Ireland as they are here; and the Courts below were of opinion that in this case there was no solid distinction between the case of a settlor seized in fee and one who might by a recovery acquire the fee when he thought proper. And it is now completely settled by the case of Johnston v. L ——, lately decided, that when, in a marriage settlement, there are further limitations to collaterals, the ulterior limitations are voluntary, and are defeated by a subsequent sale or mortgage for val. con. The only question here is, whether the circumstance that the settlor was tenant in tail, and not seized in fee, affords any solid or substantial ground of distinction. He had the absolute dominion over the estate ; and the collateral relations are as much volunteers as if the settlor had the fee. It was impossible that this could be considered a solid distinction. There would indeed be a distinction if

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Holmes v. Cogill , 7 Ves. 499.Mr. Wetherell (in reply). Their doctrine is, nolens volens you shall have a fee. But the law did not always compel persons to perform their moral duty. There were analogous cases in the bankruptcy law; and, in cases of powers, the distinction between power and property was established. This case goes further than Doe v. Manning . These were technically in law new gifts, but morally and substantially they were not new gifts, so as to bring them within the statutes of Elizabeth.March 16, 1818.Lord Eldon , (C). This question is perfectly new. It is a question also of English law; and that question is, whether a limitation made by a tenant in tail, in his marriage settlement, to his brothers, is a voluntary limitation within the meaning of the decisions which apply to a tenant in fee, who, although he has so voluntarily settled the property, may, notwithstanding, dispose of it to a purchaser for val. con.: and the claim of the purchaser is good against the volunteer. There is no case where it has been determined that the same rule applies in the case of such a limitation by a tenant in tail as in that of a voluntary limitation by one who has the fee. The consequences of the decision may possibly very deeply affect property which may have passed under a great many family settlements. I have however formed an opinion upon the case, and

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Judgment. June 5, 1818,Lord Eldon , (C.) (after stating the case). The decree was not, as the practice is here, for a foreclosure only, but for a sale also, as the practice is in Ireland—“the sale, in the first instance to be of the mortgaged premises : and if the produce thereof should be insufficient, then a sale to be had of a competent part of the residue of the lands in the report mentioned.”When this case came to be heard the argument was confined to so much of the case as depended upon these two questions: 1st, whether under the settlement of the 7th and 8th of October, 1748, certain persons to whom estates were given by that settlement were volunteers : 2d, whether the mortgage was a good and valid security, on the principle that the mortgagee for valuable consideration, even with notice, had a better claim than mere volunteers.I could not at first understand, and I do not yet very well understand, why an account is directed in the same cause, of debts, legacies, and funeral expenses. In the one case it is stated that all creditors may come in and prove; in the other case, that all creditors and legatees may come in before the Master in the usual way. This is of some consequence : for it may be a very different question as

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The principal question is whether the Appellant is to be considered as a volunteer; and whether he can support his claim as against a mortgagee for valuable consideration, even with notice. And on the best consideration which I have been able to give to this case, it appears to me that the brothers of Michael Cormick, who were tenants in tail in remainder under the old settlement, by the effect of the new settlement, recoveries, and other transactions, became purchasers of a quite new and different estate ; and instead of tenants in tail in remainder, became tenants for life, with remainder to their first and other sons in tail male: the life estate being the gift of the settlor, and also the estates of the sons, who had no estate before and took originally. I cannot find that, according to

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Limitations to collaterals in a marriage settlement made by tenant in tail, voluntary as against a subsequent purchaser for val. con. in the same manner as if the settlor had had the fee.Then the doctrine whether new estates could be given to them as volunteers by one who was himself only tenant in tail was considered, and the point very ingeniously argued. There could be no doubt that if he had previously suffered a recovery, or if the estates had been given to him in fee, the brothers and their sons would be volunteers; and they say, on the other side, that there is no substantial distinction in this respect between tenant in fee and tenant in tail : and so the Court below determined, in concurrence with the unanimous opinion of the Judges of the Court of Common Pleas. I cannot advise your Lordships to reverse that decision ; and then the question returns to the decree with reference to the other creditors and legatees.There can be no doubt as to the point considered as a question between the volunteer and the executors of Plaistow, a mortgagee and creditor. If the mortgaged estate should not be sufficient to make good the debt, he has his remedy against the general assets not included in the settlement. But if the estate should pay more, then a question may arise, what is to be done as to the residue between the volunteer and the other creditors; and what is to be done with reference to the legatees. I believe the real meaning of the decree is to decide the question only as between the volunteer and the mortgagee, claiming against this specific estate, confirming

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What I propose to your Lordships then is to affirm this decree, with a declaration that the affirmance is without prejudice to any question with other creditors besides the Respondents who represent the mortgagee, or between the Appellant and the legatees. This declaration can do no harm ; and if the real meaning of the decree should be that to which in construction it is liable, it may be important to declare that our affirmance is without prejudice.Decree affirmed , with declaration as above.