Barnett v Braddley

• Jurisdiction: Ireland
• Judgment Date: 21 February 1890
• Date: 21 February 1890
• Docket Number: (1889 — L. No. 183.)
• Court: Chancery Division (Ireland)

Q. B. Div.

Appeal.

Before HARRISON, O'BRISN, MUEPHY, and HOLMES, JJ.

(1889 — L. No. 183.)

BARNETT

and

BRADDLEY

Hone v. O'Flahertie 9 Ir. Ch. R. 119, 497.

Nolan v. HornidgeUNK Ir. R. 3 C. L. 48.

Lambe's Estate Ir. R. 3 Eq. 286, 302.

Fluester v. M' Clelland 8 C. b. (N. s.) 357

Kenney v. Kenney Ir. R. 4 Eq. 181.

Moorehead's Estate Ir. R. 5 Eq. 55.

Bagnal v. Carlton 6 Ch. Div. 130.

Rooney's EstateDLTR 8 Ir. L. T. R. 125.

Fletcher v. Egan 17 Ir. Ch. R. 104.

Kennedy's Estate 8 Ir. C. L. R. App. 5.

Hone v. Flahertie 9 Ir. Ch. R. 119, 497.

Moorehead's Estate Ir. R. 5 Eq. 55,58.

Kennedy's Estate 17 Ir. Ch. R. 104.

Lambe's Estate Ir. R. 3 Eq. 286.

Fluester v. M' Clelland 8 C. b. (N. s.) 357

Action to recover possession of lands —— Bond, with warrant of attorney containing provision for stay of execution — Registration pf judgment mortgage pending stay — Objection not admissible at Nisi Prius.

Vol,. XXVI.] Q. B. & EX. DIVISIONS. 209 mission to sell the tenancy ; the sub-section deals with two separate Appeal. things, namely, the interest in the improvements, which is a chose 1890. in action, and the holding itself. But when we come to the Act of KASSEREENE 1881, it is the tenant who has to take the initiative. He may sell KELLY. his tenancy to anyone for the best price he can get, subject to the regulations and provisions contained in the Act, including the proÂvision giving the landlord a power of pre-emption in the exercise of which he of course purchases the tenant's improvements. In my opinion there is no such inconsistency between the two statutes as would effect the repeal of the earlier by the later. Decision below affirmed. Solicitors for the landlord (appellant) : Dudgeon 8f Emerson. Solicitor for the tenants (respondents) : P. C. MGough. BARNETT v. BRADLEY (1). (1889-L. No. 183.) Q. B. Div. 1890. Jan. 29. Action to recover possession of lands-Judgment Mortgage Act (13 4- 14 Viet. c. 20)-Bond, with warrant of attorney containing provision for stay of execution-Registration of judgment mortgage pending stay,Objection not admissible at Nisi Prius. The registration of a judgment as a mortgage, under the Judgment Mort gage Act, is not a violation of a stay of execution on the judgment. In any event, an objection that such a mortgage is invalid because registered pending the stay is not admissible at Nisi Prius. AcrioN to recover possession of land. This action was tried before Mr. Justice Gibson and a common jury in Dublin at the Michaelmas Sittings, 1889. The plaintiff's claim was to recover possession of part of the lands of Killyfadcly in the County of Londonderry. The plaintiff's father was tenant from year to year of the lands under the Salters' Company, and by (1) Before HARRISON, O'BRIEN, MURPHY, and HontEs, Appeal. Feb. 21. 210 LAW REPORTS (IRELAND). [L. R.I.. Q. B. Div. deed dated 9th June, 1884, he assigned his interest to his son the 1890. plaintiff, in consideration of natural love and affection and of sup B&RNETT porting his father. The father owed about £50 to the defendant BRADLEY. Bradley ; and amongst other debts he owed a person named Henry £16 by promissory note, which Henry assigned to a person named Alderdice, who got a judgment against plaintiff's father, and he was ejected at the suit of Alderdice on a sheriff's deed. A deed dated the 10th June, 1886, of assignment of the farm from Alderdice to the defendant was proved. Plaintiff gave defendant a bond for the debt of £50 on the 10th February, 1885. A judgment was recovered by the defendant on the 13th February, 1885, and an affidavit to register same as a judgment mortgage was filed in the Exchequer Office on the 17th February, 1885. The warrant of attorney on which the judgment was marked contained a condiÂtion to stay execution for two years, viz. till the 4th February, 1887. The certificate of the judgment entered for defendant omitted any such stay. Counsel for the defendant asked his Lordship to rule that registering a judgment as a mortgage was not an execution ; but he refused, and held the judgment mortgage was illegal, being registered when the stay was in force; also, to rule that the deed of the 9th January, 1884, was void, as the result was to defeat and. delay a creditor. His Lordship refused. There was no objection to his...