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This case helps to make sense of part of the ongoing conflict surrounding the house and lands of Cavananore, Co. Louth. I will finish writing up a full account in the near future.
Sharon Oddie Brown, April 1, 2010
Updated May 12, 2010

1876 March 3 Case on behalf of John E. Morton[1]

 

SEE Also: Dundalk Democrat: "Case on John E. Morton esq. re May 1847 Andrew C. BRADFORD devised to illnesses GILMER & McCULLAGH Cavananore William OLIVER, David JACKSON, Andrew OLIVER. NOTE: I have noted but not transcribed this article.I expect that the date would likely be: May 1876.

 

Case on behalf of John E. Morgan Esq. for counsel's advice and directions with a view to compelling specific performance of the agreement hereinafter mentioned.

 

May 1847: Andrew C. Bradford[2] devised to Messrs. Gillmer[3] and McCullock[4] all his freehold estates amongst others one undivided moiety of the lands of Cavananore[5] in the County of Louth in trust that said trustees and the survivor might set let and demise the same and every part thereof to solvent tenant or tenants other than his three nephews William Oliver[6] David Jackson[7] and Andrew Oliver[8] at the best rents that could be got for the same, for any term not exceeding 21 years and manage and receive the rents so as to make the same most productive and pay head rents etc.

 

The said testator afterwards died without altering or revoking said will and same was proved in the Principal Registry of the Court of Probate 1st July 1847

 

            In the Dundalk Democrat of the 8 Jany 1876 the following advertisement appeared:

                                    “To be Let

“The house offices and farm of Cavananore as lately

“in the occupation of Miss Oliver deceased containing

“90 acres Irish plantation measure for 21 years

“Proposals to be addressed before 15th instant

“to James Birch Gilmer

“Mayfield Dromora[9]

                        And in the General Advertiser of the same day i.e. 8th January 76 the following advertisement appeared

“County Louth farm to be let for a term of 21 years

“Cavananore farm containing 90 acres Irish measure

“together with good house and offices within 5 miles

“of Dundalk. Proposals will be received by me

“up till the 30th January.

                                    Thomas McCullagh

                                                Derryvalley, Ballybay

                                                            January 6, 1876

            Council will observe the advertisement in the Dundalk Democrat invites proposals addressed to Mr. Gillmer before the 15th instant and that in the General Advertiser states that the proposals would be received by Mr. McCullagh up to the 30th.

Querist having seen the last advertisement went on the 29th January and inspected the house and farm and in same day wrote a proposal to Mr. McCullagh offering £3.0.6 per acre Irish measure.

            And on the 31st January 1 Querist went to Mr. Gillmers at Mayfield Dromara and Querist having informed him of his proposal to Mr. McCullagh he admitted that Querist’s proposal was the highest by some pence but would not give any definite answer until he Mr. Gillmer would hear from his co-trustee Mr. McCullogh.

            On the first February Querist received the following letter from Mr. McCullagh

 

                                    “Derryvalley January 31, 1876.

‘Dear Sir,

            “I received your proposal and have

“written to my co-trustee Mr. Gillmer respecting

“it, if he is satisfied I am quite willing to accept

“you as tenant on the terms you propose. We

“cannot however promise you a renewal of

“lease at the end of the 21 years.

                                    Yours very truly

                                                R.McCullagh[10].

And on the first February Querist wrote Mr. Gillmer stating that he had been accepted as tenant by Mr. McCullagh.

Querist not having received any reply went with Mrs. Morton (Querist wife)[11] to Mr. Gillmer who stated that the place was not let to anyone else and that there was no offer as high as Querist. They do not want to give it to another, that Mr. McCullagh wanted him not to set it for another year as possibly Tom Jackson the Residuary legatee of the will of Mr. Bradford might come home from Hong Kong where he is a Bank Manager and would take it possibly.

            Upon the next morning i.e. the 6 February 1876 Querist received the following letter

                                    Mayfield 5 February 1876.

“Dear Sir,

Mr. McCullagh has not decided to

“accept your offer as he has written me on the

“2nd inst proposing to accept another and urging

my acquiescence, and consequently I cannot

“give you a final answer until I hear from

“him when I shall (D.V.[12]) immediately write

“you.                           Yours very truly

                                                JB Gillmer”

JE Morton Esq.

 

This letter was evidently written and posted before Querist and his wife arrived at Mr. Gillmer's and Council observed the inconsistency of the contents of this letter with a conversation which Querist had with him on that day.

 

On the seventh February Querist wrote the following letter to Mr. McCullagh

 

                                    “Lisburn 7 February 1876.

“Dear Sir, since writing on the fifth instant I had

“a letter from Mr. Gillmer stating you were

“urging his acceptance of another tenant

“I did not expect such conduct from one of

“your character and position which was always

“considered to be honourable and straightforward

“but as I must believe his statement I have

“no course left but to take legal advice and

“have now to call upon you to carry out the

“provisions of your letter of the 31st all to within

“three days from the state otherwise I will

“compel it through the court of Chancery and

“hold you personally responsible for all costs loss

“etc. And I have also to give you notice here with

“that you are not to dispose off or let those lands

“of Cavananore until the orders of said courts become

“known.

                        “J E Morton.”

“ Thomas McCullagh Esq.”

 

            And on the same day the 7th February Querist wrote Mr. Gillmer the following letter

 

                                    “Lisburn 7 February 1876

“Dear Mr. Gillmer, your letter of the fifth instant

“certainly alters the complexion of the case

“which I have to thank you for your straightforwardness

“and courtesy. I must condemn Mr.

“McCullagh's conduct, you admit my proposal

is the highest. His letter of the 31st, ulto accepts

“of me as tenants on the terms proposed. I have

“now written to insist on the completion of

“the contract and to hold him personally

“accountable for all costs etc. I also warned

“him to do so within three days from date

“hereof and to ask not to dispose of those

“lands of Cavananore till orders of Court of

“Chancery become known. Of course you

“will be very cautious in the matter till

“you see the upshot. Again thanking you

                                    J E Morton”

“JB Gillmer Esq.”

 

On 10 February Querist again waited on Mr. Gillmer and brought with him and exhibited to Mr. Gillmer conveyances and fee farm grant of properties in the County Cavan and County Down valued for £10,000 for the purpose of proving his solvency and after Mr. Gillmer had examined them Querist offered to leave them with him for his further perusal, this he declined as he said he had made enquiries which proved satisfactory. Querist also then told him he had a large sum of money in American Bonds and Ulster Bank shares. Mr. Gillmer then stated Querist must have patience and wait for a few days.

            And on the 11th Feby Querist received the following letter from Mr. McCullagh

 

                                                “Derryvalley,

                                                            “9 February 76

“Dear Sir,

            “I had a letter for Mr. Gillmer. I

“am sorry he does not see his way to

“accept your proposal. I would be quite

“satisfied with it but without his consent

“I cannot move in the matter.

                        Thos McCullagh

“John E. Morgan Esq.”

 

            Querist waited to hear from Mr. Gillmer as he promised he would write him in a few days at the last interview till the 16th upon which day he wrote him for definite reply, and upon the 17th February received the following reply.

 

                                    “Mayfield 17 February 1876

“My dear Sir,

            “I cannot accept your proposal

“for Cavananore

                        yrs truly

                        “J.B. Gillmer”

“John E. Morgan Esq.”

 

Querist thereupon placed the matter in the hands of his solicitor Mr. Young[13] who wrote to Mr. Gillmer the following letter

 

                                    “Lisburn 18 February 1876

“Dear Sir I am instructed by Mr. Morton

“of this town to caution you against leasing

“or otherwise disposing of the possession of

“Cavananore except to him in accordance

“with letter of the 31st January and to require

“you and your Co-trustee to grant my client

“the lease of said farm in the terms of his

“proposal and unless they receive from you

“an intimation of your willingness to do

“so by return of post I am further instructed

“to take such proceedings to compel you to do

“so as counsel may advise.

                        “Yours [?]

                                    “W. Young

“JB Gillmer Esq.”

 

Mr. Young wrote a similar letter to Mr. McCullagh and to this letter Mr. Young received the following reply

                                    Derryvalley

                                                Ballybay,

                                                             19 February 1876

“Sir,

“In reply to your letter of the 18th instant I

“beg to state that in two letters received by

“me for Mr. Gillmer by Co-trustee he distinctly

“refused to accept your client as tenant of

“Cavananore and to ask you to hold any

“further correspondence on this matter which

“you may think necessary with Mr. Joseph

“Dickie Esq.[14] of Dundalk my attorney.

                        “Your ob servt

                                    J. McCullagh”

W. Young Esq.

Lisburn

 

The following is Mr. Gillmer's reply written in a postcard

 

“Dear Sir,

“In two or three days you will

“likely hear favourably from

                        yours truly

                                    GBG

“Mayfield

“19 February 1876”

 

            Mr. Young then wrote Mr. Gillmer the following letter

 

                                                “Lisburn 21st Feby 1876

“Dear Sir,

“I am in receipt of your post

“card and will delay taking any proceedings

“for a few days. I may mention that I

“have obtained an extract of the deceased

“will by which I find you and your co-trustee

“are directed to let the lands to his solvent tenants

“at the best rents which I think places my

“client’s claim to them beyond dispute. I have

“also received a letter from your co-trustee

“stating that it was you who refuse to

“accept Mr. Morton.

                                    Yours truly

                                    W. Young

“JB Gillmer Esq.”

 

            On the 29th February Mr. Young received the following letter from Mr. Gillmer

                        “Mayfield

“Dear Sir,

“In letting Cavananore we acted to

he best of our judgment. Trustees as well

as landlords have of course discretionary

power. I was sorry that we are so

circumstance that it could not be given

to Mr. Morton as he desired to have it

on account of Mrs. Morton's health.

Mr. Bradford[15] in reply to my letter has sent

me the enclosed which you will please

shew to Mr. Morton. Mr. Bradford also

says “I expect some nice places to be in

“the market shortly and I would be glad

“to assist him in the matter both in your”

account and that of his wife's friends with

whom I am acquainted and it might be

a great matter for him to be in the spot

I would've written you sooner but I

did not receive the Dundalk letter until

today.

                                    Yours truly

                                    J.B. Gillmer

W. Young Esq.

 

The extract from Mr. Bradford's letter is as follows. “If Mr. Morton is anxious to

“have the house and a small quantity of land

“I am disposed to let them have it in reasonable

“terms

                        yours truly

                                    S. Bradford”

“JB Gillmer

 

Council will gather from his letter that the trustees accepted Mr. Bradford as tenant but of what rent Querist is ignorant.

 

            Council's attention is directed to the maneuvering of the trustees each stating that the other would not accept Querist as tenant evidently with a view of shielding himself from any responsibility as they intended to set the farm to another and thus violate the contract if any such had been completed.

            Miss Oliver was tenant until her death in the year 1875

            Council will also observe that Mr. Gillmer or Mr. McCullagh never contradicted the statement in Querist letters that he was the highest proposer.

            Under the following circumstances Council will please advise.

 

1st Are the trustees bound, they having advertised the land, and having regard to the trusts of the will to accept Querist as tenant, his being the highest proposal; or have they discretionary power under the will to ignore the highest proposals submitted in accordance with the advertisement and let the lands to whoever they liked.

2nd Is the acceptance of Querist as tenant in the manner set or in this case a binding contract in the trustees.

3rd. Would Querist be successful in a Chancery suit for specific performance of the agreement, and if so would counsel advise such, or would he advise an action at law for breach of contract.

4th Counsel's advice and directions generally are requested.

 

[New handwriting]

  1. The trustees were not bound to accept Querists proposal although the highest -- By the will of May 1847, they were directed to devise the lands to his solvent tenants at the best rent. The trustees were therefore bound to have regard, not merely in the amount of the proposal, but to the solvency of the tenant. Querist cannot complain of the exercise of this power, no matter how unreasonably or erroneously it may have been exercised. The cestui qui trusts are the only persons entitled to do so.
  2. No binding contract has been made between the trustees and the Querist. McCullagh's acceptance of 31 January 1876, was conditional upon acceptance by his cotrustee Mr. Gillmer. In this letter Mr. McCullagh after states, that he had written to Mr. Gillmer on the subject and in the letter of 9 February 1876, he states that he had received a letter for Mr. Gillmer refusing: and again in a letter of 19 Feby to Mr. Young he refers to two letters of Mr. Gillmer refusing to accept Querist as tenant. Mr. Gillmer's letters negative any acceptance by him and the conversations with him cannot be safely relied upon as an acceptance.
  3. A suit for specific performance would not in my opinion be successful. An action at law, for breach of contract, could not be maintained as they is no concluded contract.
  4. Querist has certainly very great reason to complain of the way in which he has been treated. But there being no concluded contract, within the Statute of [?ands], he is without redress.

                                                            Henry FitzGibbon

                                                                        15 Marion St E.

                                                            March 3, 1876

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



[1] John Ellis MORTON was resident at Lisburn at this time and owned 842 acres there in 1876 (SOURCE: 1876 Landowners). His wife, Sarah BREAKEY was a daughter of Rev. William Edmund BREAKEY and Jane CROTHERS of Banbridge. SOURCE: PRONI T2356/1 Genealogy of the Breakey Family of Drumskelt, Ballybay, Co. Monaghan, Ireland. They had a child, Claude Herbert Morton.

I would guess that this John MORTON might be the one who died Dec 25, 1891, a Banbridge merchant, who left wife Sarah as executor (SOURCE: PRONI Wills) or else a John MORTON whose effects would look to be more of a match with this one (£6,018.10.0) who died in 1902 leaving a wife Mary J. MORTON. Another John MORTON died 1916 of Belfast was even more wealthy: Effects £143,975.3.0.

[2] Andrew Coulter BRADFORD 1788-May 10, 1847 (died at age 59). He was the son of Thomas BRADFORD & Elizabeth BREAKEY.

[3] James Birch GILLMER (or Gilmer or Gilmore)1808-1877, son of Eliezer Birch GILMORE & Rachel BIRCH. He married Mary DOAK and had 8 known children.

[4] Thomas McCULLAGH (circa 1793-1877) son of Thomas McCULLAGH & Jane REED. He married Sarah McCULLAGH (1816-1857), daughter of Thomas McCULLAGH & Mary BRADFORD (sister of Andrew Coulter BRADFORD). Thomas & Sarah lived at Dunraymond until Sarah inherited Derryvalley on the death of her father circa 1850

[5] Cavananore, Parish of Creggan, Co. Louth

[6] William OLIVER( b abt 1810-d.1873) son of Benjamin OLIVER (1765-1831) & Elizabeth BRADFORD (1785-1825).

[7] David JACKSON (1814-1889) He was the husband of niece, Elizabeth OLIVER, but also related through the marriage of his grandfather David JACKSON (d. 1796) to Margaret BRADFORD (abt 1739-1820).

[8] Andrew Bradford OLIVER, (1818-1877) son of Benjamin OLIVER & Elizabeth BRADFORD.

[9] Mayfield, Parish of Dromora, County Down

[10] R. McCULLAGH ? NOTE: In Griffiths Valuation, I find it interesting that amongst the many MORTON mentions that in the townland of Ballyvalley, Parish of Seapatrick, Co. Down that there is a John MORTON sr, a John MORTON jr as well as an Andrew MORTON jr who leases to Robert McCULLAGH.

[11] Mrs. MORTON? Later in the document, there is reference: [MORTON] desired to have it on account of Mrs. Morton's health.  See footnote on John MORTON for more speculation.

[12] Deo volente. 'God being willing'

[13] John YOUNG of Lisburn.

[14] Mr. Joseph DICKIE (1821-1877) Mr. Joseph Dickie of Fair Hill, solicitor, was an extensive and able practitioner in Dundalk for many years. He was the son of Mr. Robt. Dickie, of Roachdale; and brother to Mr. John Dickie of Malahide, and of Mr. Alex Dickie of Roachdale. He married Miss Wallace, daughter of Capt. Wallace, a distinguished solicitor in Newry. Mr. Randal Donaldson, solicitor, and Robert Dickie, solicitor, his nephews, are amongst our prominent local legal men."SOURCE: Tempests Annual Centenary 1859-1957

[15] Samuel BRADFORD (1846-1915). Given his age at this time, it is interested to see how early on he was involved in this case. He was the son of Thomas BRADFORD and Margaret WALLACE – hence he was a 1st cousin once removed of Andrew Coulter BRADFORD.

 

 

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