Beere v Head and Others

• Jurisdiction: Ireland
• Judgment Date: 13 February 1846
• Date: 13 February 1846
• Court: Court of Chancery (Ireland)

Chancery.

BEERE

and

HEAD and others.

Davis v. Lod Strathmore 16 Ves. 428.

Wyatt v. Barwell 19 Ves. 438.

Stewart v. CottinghamUNK 6 Ir. Eq. Rep. 248.

Jolland v. Stainbridge 3 Ves. 478.

Thomas v. PledwellUNK 7 Vin. Abr. 53.

Davis v. Stratmore 16 Ves. 419.

Willis v. BrownsENR 10 Sim. 148.

Le Neve v. Le NeveENR 3 Atk. 646.

Cheval v. NicholasENR 1 Str. 664.

Doe v. Routledge Cowp. 712.

Wanleyn v. De Mattos 2 Ken. 226.

Malins v. Freeman 6 Scott, 187.

Davis v. BryanENR 6 B. & C. 651.

Measter v. Gillespie 11 Ves. 628.

Croosly v. ArkwrightENR 2 T. R. 608.

Gye v. FeltonENR 4 Taun. 876.

Doe v. ManningENR 9 East, 71.

Doe d. Martyn 1 Bos. & P. N. R. 335.

Buckle v. Mitchell 18 Ves. 110.

Cockburn v. Wright 6 Ir. Ep. Rep. 5.

76 CASES IN EQUITY. 1846. Chancery. BERRE v. HEAD and others. (Chancery.) THIS was an appeal from the decision of his Honor the Master of the Rolls. The facts of the case, and the judgment of the Master of the Rolls are reported ante, vol. 8, p, 647. Mr. William Smith, for the defendant William David Daly, and Charles Henry Cromie his assignee. It is admitted that there was notice, but two questions arise ; first, whether notice to a purchaser of a judgment will dispense with revival or redocketing, and make it binding against the purchaser; secondly, whether the evidence of notice in this case is sufficient. The case of Davis v. Lord Strathmore (a), relied on by the other side, arose on the English statute 4 & 5 W. M. c. 20, an Act different in its policy and its terms from the Redocketing Act, 9 G. 4, c. 35. The object of the former was to guard against the secrecy of judgments ; but the latter is more extensive, being not only for the better discovery of judgments, but also to protect and quiet the title of purchasers, if its provisions are not complied with ; and plainly contemplates that purchasers are to be protected against " old outstanding judgments appearing unsatisfied on record, although considerable numbers of the same have been actually paid off and discharged, to the great impediment of the due transfer of property, and to the great disquiet of purchasers for valuable consideration." It is not necessary to contend that the words "null and void," which are used in all the sections of this Act, exclude the jurisdiction of the Court if there be fraud. Express notice has been held to dispense with registry, because the object of the Registry Act being to protect purchasers against secret conveyances, relief was given in equity on the ground that the unregistered deed is a good equitable contract charging the land, generally containing a covenant for further assurance, and binding the conscience. Until lately a judgment was not a charge on the land, although capable of being made one by issuing an elegit. Here there was no contract with the judgment creditor for any interest in the mortgaged lands. The policy of the decisions on the Registry Acts (a) 16 Vas. 428. CASES IN EQUITY. 77 has been doubted by high authority and ought not to be extended : 1846. Wyatt v. Banoell (a). The aim of this Act was finality, unless its ChaseerY. provisions were strictly complied with. The words " null and void" "ERE must be considered as something more than merely null or void men. separately, and as strong as " utterly void, frustrate and of none effect" in the statute against voluntary conveyances (27 Eliz. c. 4, Aglawa• Eng.), or " null and void to all intents and purposes," as in the English Annuity Act (53 G. 3, c. 141). The distinction between Acts of Parliament denying legal effect to instruments, and declaring them void to all intents and purposes, is important ; in the latter case the policy of the Act requires that they should not be set up for any intent or purpose. This Act provides two modes of preserving the rights of the judgment creditor ; it contains no exception whatever ; no saving as to a person non compos, beyond the seas, or who might by accident be prevented from complying with its provisions-a class certainly as much deserving of the consideration of a Court of Equity as the party who, with notice of this Act, has declined or neglected to comply with its simple provisions. As to existing judgments, five years were allowed to preserve the right, and the judgment creditor has only to blame himself for omitting to give the form of notice prescribed by the Act : Stewart v. Cottingham (b). The third section applies beyond all doubt to purchasers before the Act. Suppose a conveyance in 1826, with notice of a judgment then " appearing unsatisfied on record," whether paid or unpaid, would not the Act be nugatory unless this judgment were barred, at the end of five years, unless revived or redocketed ? Upon the construction...