Bailie v T. S. Irwin and Rev. A. S. Irwin

• Jurisdiction: Ireland
• Judgment Date: 22 November 1897
• Docket Number: (1895. No. 4234.)
• Date: 22 November 1897
• Court: Queen's Bench Division (Ireland)

Bailie

and

T. S. Irwin and Rev. A. S. Irwin (1).

Q. B. Div.

(1895. No. 4234.)

CASES

DETERMINED BY

THE QUEEN'S BENCH AND EXCHEQUER DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL,

AND BY

THE COURT FOR CROWN CASES RESERVED.

1897.

Statutes of Limitation — Action upon covenant in mortgage deed — Payment of interest by one of several mortgagors — 3 & 4 Wm. 4, c. 27, s. 40 — 3 & 4 Wm. 4, c. 42, s. 3 — 16 & 17 Vict. c. 113, s. 20 — 37 & 38 Vict. c. 57, s. 8 — 19 & 20 Vict. c. 97, s. 14.

In a mortgage deed of land, dated in 1853, A and B, the mortgagors, jointly and severally covenanted with C, the mortgagee, for payment of principal and interest. Interest was paid by A to the time of action brought. Neither principal nor interest was paid by B. In an action on the covenant against A and B:—

Held, that the payments by A prevented the Statute of Limitations from running in favour of B.

The Mercantile Law Amendment Act (19 & 20 Vict. c. 97), s. 14, does not apply to a personal action brought to recover money secured by a mortgage of land.

Motion on behalf of the defendant, the Rev. Alexander Staples Irwin, that the judgment entered for the plaintiff at the trial be set aside and judgment entered for the said defendant, or for a new trial, on the ground that upon the findings of the learned Judge at the trial the judgment in the action was wrongly directed to be entered for the plaintiff.

The action was brought to recover £2198 principal and interest due on foot of two indentures of mortgage. The statement of claim endorsed on the writ of summons was as follows:—

The plaintiff's claim isfor£2198 being for two sums of £700, and £700 each due for principal and £798 being nine and a-half years' interest on the said two sums of £700 each to the 1st February, 1895, at the rate of £6 per cent. per annum and due on an indenture of mortgage (2), and a covenant and agreement express and implied in said indenture of mortgage dated the 8th September,

1853, and made between Benjamin Dickson of the first part, J. M. Irwin of the second part, J. D. Johnston of the third part, the defendants Thomas Staples Irwin and Bev. Alexander Staples Irwin, and J. E. Irwin of the fourth part, the Rev. T. S. Monck, Eliza Richardson, and the plaintiff and W. Graves, and Courtenay Newton of the fifth part, and the Rev. T. S. Monck, and Courtenay Newton of the sixth part, and whereby the said J. M. Irwin, J. D. Johnston, and the defendants and J. E. Irwin, did for themselves jointly and severally and for their respective heirs, executors and administrators, covenant with the said T. S. Monck, Eliza Richardson, and the plaintiff, and W. Graves, and Courtenay Newton, respectively, and their respective executors, administrators, and assigns, that they the said J. M. Irwin, J. D. Johnston, T. S. Irwin, A. S. Irwin, and J. E. Irwin, their heirs, executors, or administrators, or some or one of them, would well and truly pay or cause to be paid on the 19th February, 1854, the sum of £6084 5s. 8d., together with interest at the rate of £6 per cent, per annum, to the said T. S. Monck, Eliza Richardson, and the plaintiff and W. Graves and Courtenay Newton, their respective executors, administrators or assigns, in the shares and proportions in which they had respectively advanced and contributed to the said sum of £6084 5s. 8d. as thereinbefore set forth, without any deduction or abatement whatsoever; and by said indenture the defendants and the said other parties jointly and severally agreed and covenanted expressly and impliedly, that if the said sum of £6084 5s. 8d. or any part thereof, should not be repaid on the said 19th February, 1854, they would pay interest at the rate of £6 per cent. per annum on the said sum or so much thereof as should remain unpaid until paid to the plaintiff and the said other parties in the proportions in which they had each advanced the same; and by the said indenture it was declared that the plaintiff and the said Eliza Richardson had and they did advance £700 each of them the said sum of £6084 5s. 8d.; and afterwards the said Eliza Richardson died, and by indenture dated the 1st February, 1872, her executor assigned the said £700 that she had so advanced and all interest due and to accrue due thereon to the plaintiff, and the plaintiff has since been paid interest thereon. And for money lent by the plaintiff to the defendants at their request and interest thereon. (Then followed the particulars.)

The defendant Thomas Staples Irwin allowed judgment to go by default; but the second defendant, the Rev. Alexander Staples Irwin, entered an appearance and delivered a statement of defence in which besides traversing all material averments in the statement of claim pleaded (paragraph 4), the statute 3 & 4 Wm. 4, c. 42; and (5) the statutes 3 & 4 Wm. 4, c. 27, and 37 & 38 Vict. c. 57; and (8) as to the claim for money lent, pleaded the 16 & 17 Vict. c. 113. The plaintiff joined issue.

The action was tried in the Trinity Sittings, 1897, before Mr. Justice Holmes without a jury.

The only question material to this report arose upon the pleas of the Statutes of Limitation. Counsel for the defendant admitted that the agent of T. S. Irwin, who at the time was owner of the mortgaged lands, paid the interest due to the plaintiff up to the 31st December, 1887, the subsequent interest up to the 19th August, 1895, being paid out of the proceeds of sale in the Land Judge's Court. The learned Judge in his report, stated that he decided the action on the authority of Allison v. Frisby (1), and gave judgment in the following words:—“The only defence to the portion of the claim which relates to the £700 alleged to be due to the plaintiff under the covenant entered into with herself is the Statute of Limitations. Which is the statute upon which the defendant relies? I presume Mr. Wylie, Q.C. (counsel for the defendant), would answer, the Common Law Procedure Amendment (Ireland) Act, 1853, s. 20, taken in connection with the Mercantile Law Amendment Act, 1856, s. 14. If he is right in this he may proceed to argue that payment of interest by a co-debtor would not deprive him of the benefit of the provision as to the time within which the action must be brought, and it would then became my duty to consider the counter arguments and authorities brought forward by Mr. Matheson (counsel for the plaintiff). But, is he right? I am clearly of opinion he is not. It is now well settled that it is the Real Property Limitation Act, 1874, s. 8, that fixes the period of limitation in cases of actions against a mortgagor on a covenant

for payment for the mortgage debt. The case of Allison v. Frisby (1) leaves it in doubt whether this section applies to a person who joins as surety only to pay a mortgage debt. Mr. Wylie's client is not a surety. He is one of the mortgagors, and nothing else. This being so, Allison v. Frisby (1) is decisive that payment of interest by a co-debtor within the period deprives him of the benefit of the provision as to limitation. The plaintiff is therefore entitled to judgment for £457 15s. 11d. and interest thereon since the 9th November last, being the amount now due under the covenant to herself. As to the rest of the claim the defendant has pleaded that no notice of the assignment of the liability was given to him, and this is admitted to be true. The plaintiff is therefore not entitled to judgment for the unpaid balance of the second sum of £700; but it can probably be recovered in other proceedings.” His Lordship thereupon gave judgment for...