Aib v Griffin

• Jurisdiction: Ireland
• Judge: Mrs. Justice Denham
• Judgment Date: 16 December 1991
• Neutral Citation: 1992 WJSC-HC 10
• Docket Number: Rec. No. 246/1988
• Court: High Court
• Date: 16 December 1991

AIB v. GRIFFIN

BETWEEN

ALLIED IRISH BANKS PLC

PLAINTIFF

AND

MARY GRIFFIN

DEFENDANT

1992 WJSC-HC 10

Rec. No. 246/1988

THE HIGH COURT

Synopsis:

REAL PROPERTY

Incumbrance

Judgment mortgage - Validity - Affidavit - Registration - Con tents of affidavit - Statutory requirements - Compliance - Title, trade or profession of defendant - Farmer described as widow - Judgment Mortgage (Ireland) Act, 1850, ss. 6, 7 - (1988/246 - Denham J. - 16/12/91) - [1992] 2 I.R. 70 - [1992] ILRM 590

|Allied Irish Banks Plc. v. Griffin|

JUDGMENT

Conversion

Judgment mortgage - Creditor - Affidavit - Contents - Statutory requirements - Compliance - Description of judgment debtor - Title, trade, or profession - Farmer described as widow - Registration of affidavit invalid - (1988/246 - Denham J. - 16/12/91) - [1992] 2 I.R. 70 - [1992] ILRM 590

|Allied Irish Bank Plc. v. Griffin|

Citations:

FAMILY HOME PROTECTION ACT 1976

JUDGMENT MORTGAGE ACT 1850 S6

IBC V O'HARA UNREP COSTELLO 10.5.89 1989/6/1739

THORPE V BROWN 1867 LR 2HL 220

MURPHY V LACY 1897 31 ILTR 42

SWANTONS ESTATE 1897 31 ILTR 166

CROSBY V MURPHY 8 ICLR 301

WYLIE, IRISH LAND LAW 2ED 709

Mrs. Justice Denham

1 This is an application by the plaintiff for a declaration that the sum of £165,353.03 together with interest stands well charged on the interest of the defendant in three properties on foot of a judgment mortgage.

2 On 3rd March 1989 the plaintiff obtained judgment against the defendant in the total sum of £165,353.03. The plaintiff took steps to convert the said judgment into a judgment mortgage over the defendant's interest in lands and premises in three properties. The three properties were Folio 26353 of the Register of Freehold ownerships County Galway, Folio 28719 of the Register of Freehold ownership County Tipperary and the House and lands at Prior Park, Puckane, County Tipperary as set out more specifically in the grounding affidavit to these proceedings. The same affidavit was used to register each of the aforesaid lands of the defendant with a mortgage.

3 The sole issue for the determination of this court is whether the description of the defendant in the affidavit to register the judgment as a mortgage is valid.

4 In the affidavit to register the judgment as a mortgage sworn by Mary Patricia McKeague on 7th March 1990 the deponent swore in paragraph 7:

"… and that the title, trade or profession of the said defendant is now a widow and at the time when the said judgment was obtained and entered up was a married woman."

5 In the affidavit to ground this application for a well charging order sworn by Mary Patricia McKeague on 19th April 1991 at paragraph 8 the deponent states:

"From my experience in advising on titles I am fully conversant with the provisions of the Family Home Protection Act1976and comprehend the provisions thereof. I say and believe that the said Act has no application to the defendant's interest in each or any of the lands and premises specified..... for the reason that the defendant was a farmer and widow when the judgment dated 3rd day of March 1989 was given and entered against her and that her status so remained at the respective dates on which the said judgment was converted into a judgment mortgage on the lands and premises hereinbefore described."

6 In the affidavit of the defendant sworn on 13th November 1991 the defendant deposes:

"I say that I was not a married woman on 3rd March 1989 being the date that Judgment was obtained and entered up against me by virtue of the fact that I was a widow on this date my husband John J. Griffin having died on 14th January 1979."

7 In paragraph 6 thereof she stated:

"I say that my title trade or profession as of 7th March 1990 and 3rd March 1989 was not a widow but that of a farmer."

8 The plaintiff admits the defendant was a farmer.

9 The sole question before this court is whether the description of the defendant in the affidavit of 7th March 1990 to register the judgment as a mortgage is sufficient when it states "widow".

10 Counsel for the plaintiff submitted that there was a lower standard of precision of description of persons required under s.6 Judgment Mortgage Act 1850 than that required of the description of lands. That the purpose of the requirement is to identify clearly the defendant to all persons interested. That no-where does s.6 state that a misdescription shall invalidate the affidavit. Further that the section enables the plaintiff to chose either title, trade or profession of the defendant to describe her. That he opted for her title, being “widow”. That that is her correct title. He argued that authorities over the years have said that misdescription rendered an affidavit void but that none have carried out an examination of the section. He said that the purpose of the Act should be looked at and a commonsense approach applied. He referred to I.B.C. v. O'Hara, Costello J. (unreported); Thorpe v. Brown 1867 LR 2HL220 at 232; Murphy v. Lacey 1897 1 ILTR, and Swanton's Estate 31 ILTR166.

11 Counsel for the defendant pointed out that the only description of the defendant on the said affidavit to register the judgment as a mortgage was “widow”. That at that time she was a farmer. That there was no...