Bank of Ireland v Feeney

JurisdictionIreland
CourtSupreme Court (Irish Free State)
Judgment Date15 July 1930
Date15 July 1930

Supreme Court

Bank of Ireland v. Feeney.
THE GOVERNOR AND COMPANY OF THE BANK OF IRELAND
Plaintiffs
and
MICHAEL FEENEY
Defendant.

Deed of charge - Equitable charge on lands - Non-conveyance of any estate in the lands charged - Power of sale - Declaration of trust - Attorney clause - Action of ejectment brought by chargeant - Right of chargeant to possession - Summary summons - Rules of the Supreme Court (Ir.),1905, Or. LV, r. 7 - Rules of the High Court and Supreme Court, 1926,Or. III, r. 1 (iv) (d) and (p).

Summary Summons.

The special indorsement on the plaintiffs' summary summons, was as follows:—

"The plaintiffs' claim is

1. For an order that possession may be delivered to them of, firstly, part of the lands of Clonkeen, otherwise Cloonkeen, situate in the barony of Athlone, and County of Roscommon, containing 16 acres 2 roods and 1 perch, statute measure, or thereabouts, held by the defendant as judicial tenant to the Irish Land Commission at the rent of £4 17s. per year; secondly, part of the lands of Feevaghbeg, otherwise Feevagh Beg, situate in the barony of Athlone, and County of Roscommon, containing 7 acres 3 roods and 32 perches, statute measure, or thereabouts, formerly held by the defendant as tenant from year to year to the Congested Districts Board, now the Irish Land Commission, at the yearly rent of £1 7s. 6d.; thirdly, another part of the said lands of Feevaghbeg, otherwise Feevagh Beg, situate in the said barony of Athlone, and containing 5 acres 3 roods and 9 perches, statute measure, or thereabouts, formerly held by the defendant as tenant from year to year to the Congested Districts Board, and now from the Irish Land Commission, at the yearly rent of £1 7s., which said lands were, by an indenture of the 5th day of September, 1921, made between the defendant of the one part and the plaintiffs of the other part, charged with such sums of money as might be advanced to the defendant and might be due by him to the plaintiffs on any account current or other banking accommodation, together with interest thereon at 5 per cent. per annum, or at the current bank rate, at the option of the plaintiffs.

2. If necessary that it may be declared that the said mortgage is well charged upon the said lands.

3. Further or other relief and costs."

An affidavit made by Edward D. Stephenson, of Mountbellew, the plaintiffs' agent at Mountbellew, and an affidavit made by Edward Rothwell, an auctioneer, of Ballinasloe, were filed on behalf of the plaintiffs; and the defendant made an affidavit in reply. The material portions of these affidavits and of the documents exhibited therein, including the indenture of charge of the 5th day of September, 1921, are sufficiently referred to in the judgment of Johnston J.

The plaintiffs appealed to the Supreme Court (3), on the ground that Johnston J. was wrong in law in holding that the plaintiffs were not entitled to possession of the premises comprised in the indenture of September 5th, 1921.

The plaintiffs claimed possession, on summary summons, of certain holdings of land, of which the defendant was a tenant, comprised in an indenture of charge executed by the defendant in their favour. The indenture of charge contained a covenant by the defendant to pay to the plaintiffs, on demand, the balance for the time being owing by him to them on all accounts, together with interest from such demand until payment. This was followed by a charge by the defendant, as beneficial owner, of the holdings of land, and all the estate and interest which he might afterwards acquire therein, with the said balance and interest, in favour of the plaintiffs. The indenture also contained, inter alia, a proviso for release of the charge by the plaintiffs upon payment with or without demand; a proviso that the plaintiffs should have the power of sale conferred on mortgagees by the Conveyancing Act, 1881, with the modification that the money secured should be deemed to have become due when demand had been made or served, and that the restrictions imposed by sect. 20 of the Act should not apply; a declaration by the defendant that he should thenceforth stand possessed of the tenant's interest, and of every other estate and interest which might thereafter be acquired by him in the lands thereby charged, in trust for the plaintiffs, subject to such equity of redemption (if any) as might for the time being be subsisting by virtue of the presents, and to dispose thereof as they should direct; and an irrevocable appointment by the defendant of the plaintiffs, or any of them, or their secretary, his attorney and attorneys, to assign, release, and convey all his estate and interest in the said lands to them, or as they should think fit. Notice of demand of the amount then due was served by the plaintiffs on the defendant prior to the proceedings taken.

Held by the Supreme Court, affirming Johnston J., that none of the ancillary provisions, importing a power of sale, appointing the plaintiffs to be the defendant's attorneys to convey the holdings, or declaring the defendant a trustee of the holdings for the plaintiffs, subject to redemption, and to dispose thereof as the plaintiffs should direct, while not actually put into operation, changed the character of the security from that of all equitable charge on the holdings; and that the claim to possession of the lands brought by the plaintiffs, who stood on a mere equitable charge, with no estate, legal or equitable, in the lands or the tenancy, was ill-founded and against authority, and was also against the contractual intention shown by the frame of the indenture, and that accordingly the action must be dismissed.

National Bank v. Hegarty, 1 N.I.J.R. 13, followed.

Cur. adv. vult.

Johnston J.:—

This matter comes before me by summary summons for an order for possession of certain lands, held by the defendant from the Irish Land Commission, which lands were charged by an indenture, dated September 5th, 1921, with the payment of advances made by the plaintiffs to the defendant; and "if necessary, that it may be declared that the said mortgage is well charged upon the said lands." The only order that the plaintiffs ask for, however, is an order for possession. It is stated in an affidavit made by the agent of the plaintiffs at Mountbellew that it was the intention of the plaintiffs to put the lands up for sale, and he adds:—"I am convinced that to ensure a successful sale it is essential that the plaintiffs be put into possession of the premises."

It was decided by the Master of the Rolls in Bank of Irelandv. Slattery(1) and by Barton J. in Bunyan v. Bunyan(2) that the words "delivery of possession by the mortgagor," in Or. LV, r. 7, of the Supreme Court Rules of 1905 could not be read as merely ancillary to a sale ordered by the Court in a proceeding by the mortgagee against the mortgagor, and that an order for possession could be given by the Court in favour of the mortgagee without any other relief being asked for. A different construction was, in the case of Wallis v. Griffiths(3),placed upon the corresponding rule in England.

In the two Irish cases the question raised was one merely of procedure. Neither defendant could have had any objection if the procedure had been by writ of summons. In the latter case the mortgagor had regularly assigned the premises to the mortgagee by way of mortgage, and in the former there had been a demise for a term of 10,000 years.

In the present case, however, the rights of the parties are dependent upon the very special terms of the indenture of 1921, which represents the contract between the debtor and creditor. The deed is a printed form, which appears to have been prepared on behalf of the bank for general use, and the indorsement on the back describes its nature in these words:—"Deed of Charge of Judicial Tenancies in the lands of to secure the account of the Mortgagor." The maker of the deed is called throughout "the mortgagor," and the bank is described merely as "the said Governor and Company." The document begins with a covenant by the mortgagor to pay on demand the amount of the...

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