Beamish v Whitney

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 15 June 1909
• Court: Chancery Division (Ireland)
• Docket Number: (1907. No. 1271.),(1907. No. 1005.)
• Date: 15 June 1909

Beamish

and

Whitney.

Barton, J.

(1907. No. 1005.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1908.

Mortgage — Statute of Limitations — Part payment — Disputed question of fact — Originating summons — Order LV., Rule 7 — Practice.

Held (1), that the present proceeding, being in the nature of an action for foreclosure, was not a proceeding to recover a sum of money charged on land, but to recover the land itself, and that, consequently, the title of the mortgagee after the expiration of the statutory period could not be revived by a subsequent acknowledgment; and (2) that the question whether the potatoes were sent in lieu of interest upon the mortgage debt, or as presents, involved a disputed question of fact, or of inference from facts, which was not to be decided upon a summons of this kind.

Adjourned Summons.

By an indenture of mortgage dated 2nd November, 1865, Henry Hungerford Whitney granted part of the town and lands of Nohoval, Kinsale, county Cork, to Margaret Heard, to secure the repayment of a sum of £500 with interest at 5 per cent.

By an indenture, dated 28th June, 1875, Margaret Heard assigned her interest in the mortgage to William Whitney, father of Henry Hungerford Whitney.

By his will, dated 31 July, 1877, William Whitney bequeathed all his property to his daughter, Anna Daunt Whitney, whom he appointed his executrix. He died on 20th August, 1889.

Henry Hungerford Whitney predeceased his sister, Anna Daunt Whitney, in the year 1905, and probate of his will was granted to his widow, Jane Whitney (the defendant) on the 28th July, 1906, to whom he devised the said lands of Nohoval. In the schedule of assets prepared for the purposes of probate Mrs. Whitney set out the mortgage debt of £500, under Schedule B, as a subsisting incumbrance for the purpose of duty deductions.

Miss Anna Daunt Whitney died on 28th November, 1906, and by her will she bequeathed the said mortgage for £500 to Dr. Thomas Beamish (one of the plaintiffs).

There was no payment of money in respect of interest on the mortgage since 1884; but the plaintiffs alleged that in lieu of money certain bags of potatoes had been annually sent by the mortgagor to the mortgagee, and several affidavits were filed in support of this allegation. On the other hand, affidavits were filed by the defendant, alleging that the potatoes were sent as mere presents or courtesies between brother and sister.

This summons was taken out by the executors of the will of Miss Anna Daunt Whitney claiming to have the mortgage declared well charged on the lands comprised in it and for sale.

Jefferson, K.C., and Hon. Cecil Atkinson, for the plaintiffs:—

The consignments of potatoes were clearly made in lieu of payment of interest, and the mortgage debt is therefore not barred. The inclusion of the mortgage debt in the schedule of assets of the mortgagor amounts to an acknowledgment within the meaning of section 8 of the Act of 1874, and the debt due on the covenant is undoubtedly revived: Harty v. Davis(1); In re Clifden(2). If the question whether the title to the lands involves such a disputed question of fact that it cannot be suitably decided in a form of proceeding like the present, the summons should be amended into one for administration.

A. M. Sullivan, for the defendants:—

The question whether the title to the lands has been kept alive by the sending of the potatoes, which we allege was nothing more than presents from one relative to another, involves a disputed

question of fact, which cannot be decided in a proceeding of this nature: In re Powers(1). Once the title to land is barred an acknowledgment after the expiration of the statutory period cannot revive it Sanders v. Sanders(2); Kebble v. Fairthorne(3). Consequently, the inclusion of the mortgage debt in the schedule of assets cannot be relied on as an acknowledgment where, as here, the proceeding is against the land.

Certain lands were subject to a mortgage. Since 1884 no money was paid by the mortgagor in respect of the interest thereon, but the mortgagee, who was a sister of the mortgagor, alleged that bags of potatoes were sent every year by the mortgagor to her as mortgagee in lieu of payment of interest. The mortgagor alleged that they were sent merely as presents. The mortgagor died in 1905, and his executrix, in the schedule of assets, set out the mortgage as a subsisting incumbrance.

A summons was taken out, under Order LV., Rule 7, by the personal representatives of the mortgagee, for an order declaring the mortgage well charged, and for a sale; and several conflicting affidavits were filed:—

Barton, J.:—

This was a mortgagee's summons under Order LV., Rule 7, which enables a mortgagee to take out an originating summons in the Chancery Division seeking sale or delivery of possession of the mortgaged premises. The purpose of the summons is to enforce the mortgagee's remedy against the land by sale in default of payment. The form of the summons follows that of a decree for foreclosure in default of payment, to be found in Seton on Decrees, vol. iii., at p. 1895. In the corresponding English rule (Order LV., Rule 5_A) the word “foreclosure” occurs. It is omitted in the Irish rule, because sale rather than foreclosure is in Ireland the usual remedy of a mortgagee against the land; but a summons of this kind, which aims at the sale of the land, is in the nature of a suit for foreclosure, and, as a general rule, is governed by the principles applicable to actions for foreclosure.

It appears that there has been no payment of money in respect of the interest upon this mortgage since 1884; and the defendant submits that plaintiff's title was extinguished from and after 1896 by the operation of the Statute of Limitations. Plaintiff, on the other hand, alleges that since 1884 some potatoes were sent every year by the mortgagor to the mortgagee in lieu of payment of interest. Defendant disputes this allegation, and asserts that any potatoes that were sent to the mortgagee were sent as gifts or courtesies between near relatives, and not in respect of interest on this mortgage. The defendant is entitled to have this disputed question of fact, or of inference from facts, tried by oral evidence, subject to cross-examination, and not by affidavits upon a summons of this kind. I am of opinion that, for reasons similar

to those mentioned by Lindley, L.J., in In re Giles(1), I cannot dispose of this question of fact upon a mere originating summons. The Court can, upon a summons, dispose of questions of law, however difficult, but not of disputed questions of fact.

But plaintiff produces a schedule of assets which defendant, as executrix of the mortgagor's will, verified on oath on 19th June, 1906, in which, under Schedule B, she returned this mortgage as a subsisting incumbrance for the purpose of duty deductions; and plaintiff says that, as a matter of law, even if the Statutes of Limitations had barred his remedy in 1896, this acknowledgment in 1906 revived his rights. That involves a question of law which is capable...