Bunyan v Bunyan

• Jurisdiction: Ireland
• Judge: Barton J.
• Judgment Date: 09 December 1915
• Court: King's Bench Division (Ireland)
• Date: 09 December 1915

CHANCERY DIVISION

Barton J.

BUNYAN

and

BUNYAN

Bank or Ireland v. SlatteryIR [1911] 1 I. R. 33.

Doran v. HanninDLTR 40 I. L. T. R. 186.

Mortgage —— Originating Summons —

70 THE IRISH REPORTS. [1916.. BUNYAN v. BUNYAN. Mortgage— Order for Delivery of Possession to Mortgagee — Originating Setnusfons— Order LV, r. 7. The defendant, in the year 1904, had executed a mortgage of a house to the plaintiff. No part of the principal had been paid, and a large sum was due for arrears of interest. There was no prospect of the defendant being able to pay the amount due. The defendant was in possession of and residing in the house, and it was stated in an affidavit made by a local auctioneer that it would be difficult, if not impossible, to sell the premises while the defendant remained in possession. The plaintiff applied by originating summons, under Order LV, r. 7, for an order for delivery of possession, in order to exercise the power of sale in the mortgage. Held, that although such order will not be granted as a matter of courser the ease was a proper one for the exercise of the jurisdiction. ORIGINATING SUMMONS. This was au application on behalf of the plaintiff, Mary Bunyan, for an order that possession might be delivered to her of certain premises in the town of Maryborough, held under lease dated the 3rd June, 1902, for ninety-nine years. By mortgage dated the 25th July, 1904, the defendant assigned to the plaintiff these premises to secure the repayment to her of the sum of .2315, with interest thereon at the rate of per cent. per annum. At the date of the hearing of this application the defendant was indebted to the plaintiff on foot of the mortgage of the 25th July, 1904, in £315 for principal, and £212 12s. 6d. for interest, making in all the sum of £527 12s. 6d. The defendant was, at the hearing of the application, in actual possession of the mortgaged property. The affidavit of the plaintiff stated as follows : " I require possession of the said premises in order to put the same up for sale under my power of sale as mortgagee, which I intend to do forthwith if enabled to do so by the order which I ask of this honourable court. It would be impossible to realize the property while the defendant retains possession thereof." In an answering affidavit defendant stated that he knew of no Barton J. circumstances which could justify the statement of the plaintiff B . 1915 that it would be impossible for her to realize the property...