Hi all,
I'm researching a family from Donegal/Fermanagh who ended up in the Encumbered Estates Court in 1854 and I need help understanding what's going on!
As you'll see in the photo attached, there were a lot of 'owners' of this land - I've done the research and these people are all cousins (the Givens, Achesons and Seavers). I think the whole encumbered estates thing has to do with estates going bankrupt after the famine, but what I'm unsure of is if this family is fighting over land or what? Why is Charles Seaver singled out as a petitioner? He was the eldest of the cousins and all other cousins were girls (bar one other boy who I think was the youngest of all the cousins). Do you think he was trying to claim the land or something?
I found reference to a 'Seaver v Given' case about this time in the 'Rolls court' but I cannot find any further information than that so I don't know what that means.
Can anyone help or advise?
My understanding of the background to the Encumbered Estates legislation was that the value of most estates was based on the income from the rents from farmers and any other tenants leasing land. Many landlords raised cash by taking mortgages against their estates. Many estates were grossly overvalued. Then along came the famine, and most tenants couldn’t pay their rents, or at least not in full. As a consequence, many landlords couldn’t repay their mortgages and were potentially bankrupt. So many of them were in this position that many banks would also be technically bankrupt if all their mortgagees defaulted. (This is very similar to the banking crisis in more recent years where reckless loans were made against sub-prime properties, and when people failed to keep up the repayments, the “security” proved to have little or no value). A couple of defaulting mortgagees is nothing, the banking industry should be able to cope with that, but in the 1850s so many were defaulting that the whole banking system in Ireland was liable to collapse. That obviously could have led to the economic collapse of the whole country. My understanding is that the purpose of the Encumbered Estates Commissioners (later called the Encumbered Estates Courts) was to do a damage limitation exercise to solve this problem.
The Encumbered Estates Commissioners task was to sell property at the best possible price, repaying such of the mortgage as could be retrieved, after which the balance would be written off. (In the current financial crisis in the UK Boris Johnson’s government has just written off £13 billion of NHS debt. Some similarities there). That way the property could be sold on, without any hanging debt. A mortgage hangs on the property, not the person who took it out. If you buy a property that is mortgaged, and the mortgage hasn’t been cleared or written off by a court or some other legislation, the mortgage normally carries forward. In other words you acquire it. Most purchasers wouldn’t want that, making the property unsaleable. So some of the mortgage had to be legally written off, without bankrupting the banks. That was the task for the court.
So the owner of the property could petition to have it sold, as that way they’d get out of the debt.
I don’t know anything about this particular sale but it looks to be as though the owners of the land in the advert were unable to pay their mortgages and were therefore asking the Encumbered Estates Court to take their properties, sell them, and write off any outstanding debts. The purpose of the advert was probably to alert potential buyers that this property was coming up for sale. Sort of “Homes under the hammer,” so the courts might have bidders for it.
