1804.

υ.

DALY.

specific execution is co-extensive with the title to call for a conveyance, and so far as that title exists, all persons taking KENNEDY with notice are bound by it. But there is no need to apply these principles to cases where nothing specific was intended: and there is nothing to charge these estates specifically against persons who claim under incumbrances prior to the time when the title accrued to have an actual conveyance.

Judgment creditors were

not bound by the articles pri

or to the stat. 17

Now, prior to 1778, it is clear there was no such title: the contract was to convey when the right should accrue, and the right to convey must have existed before the title to call for a conveyance. The conveyance was to be according to the right which should exist when the right to convey accrued; and that right, as it existed in 1778, was a' right to convey so far as the relaxation of the popery laws then permitted, but qualified by intervening rights of other parties, and they included the rights of judgment creditors. It is clear therefore that there was no title to bind judgment creditors in a court of equity prior to 1778: their judgment attatached on the lands prior in point of time to that equity which now attaches on the lands: that equity commences in 1778: these liens are prior to 1778. And it is equally clear that from that time, according to the case of ute they were Finch v. Lord Winchelsea(a), the judgment creditors bound. bound; and in this country, where articles registered are commonly rested on as settlements, and registered articles have priority, by the express terms of the register act over actual conveyances, I think it highly expedient to hold judgment creditors bound by them. Here, however, the facts of the case would in a great degree exclude any difficulty on the subject, because as far as any demand is set up by Mr. Daly on the foot of these two judgments, it was at qurred before 1778.

(a) 1 P.Wms. 277.

are

& 18 Geo. 3.

From the passing of that stat

1804.

KENNEDY

V.

DALY.

The defendant Mr. Daly took a conveyance, with complete notice of the articles, under the circumstances I shall mention he therefore is bound to perform the articles, unless he shall shew some ground to resist the equitable right of the plaintiffs to have the articles performed. Now, if there was a simple conveyance from Thomas Kennedy to Daly, without any other circumstances; if he had sold the estate to Daly, and had said, "this estate which I have contracted "to sell is liable to incumbrances prior to my contract to convey, and I want to pay off these incumbrances, I will "sell you this estate, and the money shall be applied in discharge of those incumbrances;" the result would have been that Mr. Daly must have taken the estate subject to the rights which the plaintiffs would have had against Thomas Kennedy himself, that is, subject to the articles, and certainly subject also to the incumbrances which affected the estate, so far as he can set up those incumbrances.

There are however circumstances beyond a mere conveyance from Thomas Kennedy: first, the decree in the Exchequer, and the sale under the authority of that decree.

I had at first some doubt how far I ought to consider the proceedings in that court as fraudulent and void as against the present plaintiffs. The manner in which that suit was conducted was this: The opinion of Dr. Radcliff was taken, for the purpose of ascertaining what were the rights of the parties claiming under the articles; and if the articles had not existed, there was no necessity for the suit: the suit was clearly intended for the purpose of defeating the articles ; it could have no other object. The opinion of Dr. Radcliff was that the incumbrances created by judgments prior to 1778 would bind the estate; his opinion, though not expressed with great confidence with respect to the articles, seems to be, that subject to these incumbrances, they were

binding and effectual. A suit was then instituted, professing to bring before the court all the persons interested in those articles, but with respect to the infant children, and with respect to Mr. Thomas Daly, the proceeding was manifestly not a fair one. It was a proceeding under a contract which was itself a fraud on the articles, for the contract was that the Kennedys should have an allowance in the mean time, to be paid them out of the money to be raised by a sale of the estate; it was a fraud on the articles, because it was a contrivance to get a maintenance for the Mr. Kennedys out of what did not belong to them. The cause proceeded, without bringing Thomas Daly, the trustee, and the only person likely to take care of the interest of the minors, really and truly before the court: but deceiving the court by having him nominally before the court as a puppet in the hands of the person concerned for the Kennedys, he himself knowing nothing of it. Now these proceedings, carried on under these circumstances, were a fraud on the court, and in my opinion they were a disgrace to all the parties concerned in them: when I say that, I refer to the knowledge which the persons concerned had in those proceedings: as to Mr. Farrell, he left the whole management of the business to his attorney Mr. Daly; his object was to get payment of a debt which he had a right to get paid, and it was immaterial to him how he was persuaded to get an assignment of Mrs. Clarke's judgment; he advanced money for the purpose; he acted as he was bid, and trusted to Mr. Daly for the proper conduct of the business. But Mr. Daly must have known when that contract was entered into, that it was a fraud upon the articles, and a fraud to which Mr. Farrell need not have submitted, as he could get nothing by it; and therefore, the evident intention of the transaction was, to favour the Mr. Kennedys, and to enable them to defraud the persons with whom they had contracted.

1804.

KENNEDY

v.

DALY.

I think therefore that I never can suffer this proceeding, conducted as it was, to have any effect at all: it was entirely founded in fraud. First of all, a decree was obtained from the court of Exchequer, contrary even to the practice. of that court: it was stated, I suppose, that the bill was filed by creditors, and that the court had nothing to do but to direct an account. The court in such circumstances is bound, as I think, to see that the case is of a description to warrant the account sought for; however, the practice has been to direct the account as sought. The report which was made no way followed Dr. Radcliff's opinion: there was no way of taking the opinion of the court upon the articles; the articles were never properly brought forward before the account was directed; if they had been broughtforward, and if the court thought them not binding, they must have dismissed the bill, as against the parties deriving under them. Then, on a further hearing, a sort of intimation was by some means given to the court, that all was not right; it appeared to entertain a jealousy on the subject, which ended in a decree perfectly unintelligible; the court could not have had knowledge of the circumstances, and there must have been a fraud practised on it: for the decree directs a sale to satisfy Clarke's judgment, and the surplus money to be paid to Thomas and Walter Kennedy on their, making a good title to a purchaser. The result is clear, that. by some means or other, the matter was confused in such a way as to conceal the true question, and to prevent the court having in any manner fairly before its view the articles of 1764. In proof of this; the bill is dismissed against Thomas Daly the trustee in the articles, and yet the children, who had no claim but under the articles, are retained before the court. I think therefore that this decree

must be taken to be the sequel of a series of fraudulent : proceedings,

阚

Now, Mr. Owen Daly was conusant of all these proceedings he was privy to the contract enterered into with the Kennedys before the suit; he was acquainted with the opinion given by Dr. Radcliff, aware therefore that Dr. Radcliff conceived the rights of the parties to be just what I conceive them to be; and with this knowledge, he proceeds to make himself, first, the real plaintiff in the suit (by purchasing Farrell's judgment) and secondly, the purchaser of the estate and in the mode of conducting the suit he defrauds the persons claiming under the articles, by the manner in which the costs are taxed and paid. It is impossible to consider him as not conusant of the whole fraud from beginning to end: he makes himself the real plaintiff, perhaps to satisfy the resentment of his client, who felt that he had been led into error by Mr. Daly, and then, to avoid further question as to these articles (as it was very important to him that there should be none) he becomes the purchaser.

But it is said that the estate was sold for its full value: the contrary is pretty clear; and the evidence is strong to shew there was a general impression that the title was bad; however, Mr. Daly becomes the purchaser, and then he stood in the situation of plaintiff, defendant, purchaser, every thing; even of the court of Exchequer in truth, for every thing is done there by consent of Mr. Owen Daly, and of the gentleman concerned for the Kennedys who when he could not get his costs, seems to have been very clamorous, but very quiet afterwards.

Then having got into possession of the estate, Mr. Daly applied to the two Mr. Kennedys, to join their wives in levying a fine, to bar their rights of dower; they did levy the fine, and it is now insisted that this fine and a non-claim on it should bar the plaintiffs.

1804.

KENNEDY

υ.

DALY.