Allied Irish Banks Plc v Griffin

• Jurisdiction: Ireland
• Judgment Date: 01 January 1992
• Date: 01 January 1992
• Docket Number: [1991 No. 457 Sp. Ct. 5]
• Court: High Court

Allied Irish Banks plc v. Griffin

Allied Irish Banks plc.

Plaintiff

and

Mary Griffin

Defendant

[1991 No. 457 Sp. Ct. 5]

High Court

Real property - Encumbrance - Judgment mortgage - Statutory requirements - Affidavit required to state "Title, Trade or Profession" of defendant - Farmer described as"widow" - Whether sufficient description - Whether affidavit valid - Judgments (Ireland) Act, 1850 (13 & 14 Vict., c. 29), ss. 6 and 7.

Judgments and orders - Execution - Judgment mortgage - Statutory requirements - Whether statutory requirements fulfilled - Effect of failure to comply with statutory requirements - Judgments (Ireland) Act, 1850 (13 & 14 Act., c. 29) ss. 6 & 7.

By virtue of s. 6 of the Judgments (Ireland) Act, 1850, a creditor who has obtained judgment against a defendant, whom he knows or believes is seised or possessed of any lands, may file in the court in which judgment was obtained an affidavit which containsinter alia a description of the lands in question and the "Title, Trade or Profession of the . . . Defendant or Person whose Estate is intended to be affected", and may then register that affidavit in the Registry of Deeds.

By virtue of s. 7 of the Act of 1850, registration of the affidavit has the effect of converting the judgment to a mortgage.

Since the death of her husband in 1979, the defendant had continued to farm lands in Galway and Tipperary. In March, 1989, the plaintiff obtained judgment against the defendant in the sum of £165,353.03, and ultimately proceeded to register the judgment as a mortgage over the defendant's lands. The affidavit to register the judgment as a mortgage, sworn on the 7th March, 1990, stated 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."

The plaintiff then sought a declaration that the sums due stood well charged against the defendant's interest in the lands in question. The affidavit grounding the application sworn in April, 1991, described the defendant as having been a "farmer and widow" on the date on which judgment was entered against her and having remained as such on the dates on which the judgment was converted into a mortgage over her various lands. The defendant contended that the description of her as a "widow" in the affidavit of 7th March, 1990, was not sufficient for the purposes of the Act of 1850. It was not disputed by the plaintiff that the defendant had at all material times been a farmer.

Held by Denham J., in refusing the declaration sought, 1, that it had been the practice of the courts to follow the requirements of the Act of 1850 precisely, so that a misdescription invalidated the affidavit, whether or not it deceived or misled anyone.

2. That s. 6 of the Act of 1850 had been clearly interpreted as requiring the description of a person in their trade or profession if they had one, and that it was not sufficient to choose one of the headings "Title, Trade or Profession" and not another.

Crosbie v. Murphy (1858) 8 I.C.L.R. 301; Murphy v. Lacey (1897) 31 I.L.T.R. 42;Swanton's Estate (1897) 31 I.L.T.R. 166, applied. Irish Bank of Commerce Ltd. v. O'Hara (Unreported, High Court, Costello J., 10th May, 1989) distinguished.

3. That the words "widow, widower, married woman, married man, spinster, or bachelor" were indicative of marital status and, in relation to a person who was a farmer, did not satisfy the requirements of the Act of 1850 to give that person's "Title, Trade or Profession".

4. That the affidavit grounding the registration of the judgment as a mortgage had been invalid

Cases mentioned in this report:—

Crosbie v....