Page:The English Reports v1 1900.pdf/239

ordered and adjudged by the Lords, that the petition and appeal be dismissed, and the decree complained of affirmed.—Lords Journ. vol. xvi. p. 669. (Pre. Chan. 146. 2 Eq. Ab. 708. vin. xix. 291.)

The appellant stated, that the object of this appeal was to have the benefit of mortgages for 1000l. and 416l. made by Robert Nangle to appellant's late father, Fergus Farrel, and particularly to have the sum of 1778l. 2s. 9d. paid into the Court of Chancery in Ireland, for redemption of those mortgages by Samuel White, a subsequent mortgagee of the same estate, and that his title thereto was as eldest son of his father, by Ann Lysons his mother, (both deceased) whose portion of 2500l. was according to articles before her marriage, to be invested in the purchase of lands, to be settled to the use of himself and his wife for their lives, remainder to the heirs-male of their bodies; and that this mortgage money was part of that 2500l. and that the respondent, Katherine White, was a second wife of Fergus, and having got administration to him claimed the mortgage money as part of the personal estate of Fergus; and that appellant had brought his bill in Chancery in Ireland, against respondents White and wife, to have the mortgage money by virtue of the marriage articles; and that the bill was dismissed on the hearing, 8th June, 1700, and that on a re-hearing, 26th June, 1700, appellant was decreed to have a moiety of the surplus of this mortgage money after all debts and charges paid, and the other moiety to be divided between the respondent White and his wife, and her child by Farrel, her first husband, and that such surplus would be little or nothing, and that this 1778l. 2s. 9d. redemption money, had been brought into court by the subsequent mortgagee in another cause, wherein he was plaintiff against the said White and wife, on payment of which the court put him into possession, and decreed the mortgage to be assigned by him to them; and that appellant was no party in that suit, nor did he controvert that decree, but prayed that White and wife might be injoined from receiving that money out of Court; because if appellant succeed in his cause, that money will belong to him; and stated [147] further, that the mortgage deeds were in the hands of one Dowling, who pretended that appellant's father, Fergus Farrel, deposited them with him as a security for a debt of 265l. and that White and wife had lately got a decree against Dowling, to deliver the deeds to thein on payment of that money and interest; and that appellant was no party to that decree; and that White and wife ought to be injoined from taking benefit thereof, for that those deeds belonged to appellant and not to White and wife; and insisted that the decree made in his cause ought to be reversed, and the mortgage money in court paid, and the deeds delivered to him; and that the money ought not to be deemed part of his father's personal estate; and that appellant's father ought to be considered as a bare trustee of that money to be applied according to the marriage articles; and that placing it upon a mortgage in fee simple, ought in equity to be construed as an investment of it in land, according to the intention of the articles: and that none of the contending parties could have benefit of the redemption of the mortgage without a conveyance from appellant, to whom the fee simple and inheritance of the premisses is descended; and that under all the circumstances of this case, the redemption money and mortgage deeds ought to go with and belong to the estate in law, in the appellant; and though it be objected that appellant has all his father's estate in Ireland under the marriage settlement, and so is provided for, yet that estate was covenanted to be worth 600l. per annum, and is not now set for above 106l. (William Dobbyns.)

The respondents on the other hand shewed, that about 1683, Fergus Farrel lent Robert Nangle, or paid for him as his surety divers sums, amounting to 1416l. for securing which, Nangle mortgaged to Farrel and his heirs Ballycorky, and other lands in the county of Westmeath and Longford in Ireland; and that one William Smith had a subsequent mortgage on Nangle's estate, and he dying, re-