Butler v Gilbert and The Royal Bank of Ireland Ltd

• Jurisdiction: Ireland
• Judgment Date: 10 May 1890
• Date: 10 May 1890
• Docket Number: (1889. No. 11,523)
• Court: Chancery Division (Ireland)

Chancery Division.

(1889. No. 11,523)

BUTLER

and

GILBERT AND THE ROYAL BANK OF IRELAND (LIMITED).

The Queen v. The Registrar of Middlesex 15 Q. B. 976.

In re Monsell 5 Ir. Ch. R. 529.

Stephenson v. Royce Ibid. 401.

Cleary v. FitzgeraldUNK 7 L. R. Ir. At p. 255Deasy, L. J.

In re French's EstateUNK 21 L. R. Ir. 283.

Gardiner v. Blessinton 1 lr. Ch. R. 64; on appealibid. 79.

Delacour v. Freeman 2 Ir. Ch. R. 633.

Stephenson v. Royce 5 Ir. Ch. R. 401.

In re Monsell Ibid. 529.

The Queen v. Registrar of Middlesex 15 Q. B. 976.

Dillon v. Costelloe 1 Jones, 410.

Gardiner v. Blessinton 1 Ir. Ch. R. 64; on appealibid. 79.

Stephenson v. Royce 5 Ir. Ch. R. 401.

In re Monsell 5 Ir. Ch. R. 529.

Bath and Montague's Case 3 Ca. Ch. at p. 101.

Walsh v. Trevanion 15 Q. B. at p. 751.

Howard v. Earl of ShrewsburyELR L. R. 17 Eq. at p. 394.

Registration of deed Mortgage of lands County stated correctly in recital and incorrectly in operative part Memorial following the deed Priority.

230 LAW REPORTS (IRELAND). [L. ILI, Monroe, T. the last of those lives had expired fifteen years before. The onus 1890. of bringing home reasonable knowledge to the plaintiff of the fall WARD of the lives was thrown upon the tenant, the more especially as v. isi'RosERTs. the plaintiff was only bound to renew on nomination by the tenant of the life or lives to be added in lieu of those which had expired, and this burden of proof is not shifted from the tenant merely because the plaintiff by his pleading anticipates and negatives a defence which might possibly have been put forward. The ages to which the ceslui qui vies must have attained, if alive in the year 1887, are no doubt beyond the average of human life, but not sufficiently so as to render it obligatory on the landlord to draw the inference of their deaths, and to act on this assumption. It is curious, too, that the tenant never served an originating notice until six years after the passing of the Land Act of 1881. On the whole, I am of opinion, that the defendant is bound to accept a renewal, and therefore affirm the decision of the County Court Judge in all respects, and dismiss the appeal with costs, which I measure at 8 8s. Solicitor for the plaintiff : Messrs. James Marland 85 Co. Solicitor for the defendant : Mr. William Graham. M. R. 1890. May 1, 2, 10. BUTLER v. GILBERT AND THE ROYAL BANK OF IRELAND (LIMITED). (1889. No. 11,523) _Registration of deed-Mortgage of lands-County stated correctly in recital and incorrectly in operative part-Memorial following the deed-Priority. The statement in the operative part of a deed of mortgage of a wrong county as the county in which the lands intended to be conveyed are situated, though the proper county is mentioned in recitals, and the deed is capable of being so construed as to convey the lands in question, and though the memorial prepared for registration accurately follows the deed, is such an error as will vitiate the registration and postpone the deed to a subsequent incumbrancer by duly registered deed without notice. Gardiner v. Blesinton (1 Ir. Ch. R. 64, 79) distinguished. VOL. XXV.] CHANCERY DIVISION. 231 ACTION, claiming an account of what was due for principal M. R. and interest, on foot of a mortgage, and payment of what should 1 890. BUTLER BU be found due, together with the costs of the action, by a day to be appointed by the Court, and in default, sale of the lands G ILBERT. comprised in the mortgage ; and a declaration that the plaintiff's mortgage was entitled to priority over one of earlier date, under which the Royal Bank of Ireland (Limited), claimed to have a charge on the same lands. The mortgage under which the Royal Bank claimed was dated the 21st April, 1881 ; it contained amongst others the following recital :-" And whereas the said Richard Gilbert is now possessed and in occupation of that part of the lands of Moygaddy, situate in the barony of Upper Deece, and county of Meath, containing 144 acres, Irish plantation measure, or thereabouts, held by the said Richard Gilbert, under his Grace the Duke of Leinster, at the yearly rent of 360, as tenant from year to year, but with a verbal promise of a lease for the term of 31 years at the said rent." This was a perfectly correct description of the situation of the lands of Moygaddy, held by the defendant Richard Gilbert, and of his interest in them at the date of this mortgage. In the operative part of the deed, however, when Richard Gilbert assigned his interest in the lands to the Royal Bank, they were erroneously stated to be situated in the county Kildare. The Royal Bank prepared a memorial of this deed, for the purpose of having it registered ; the memorial set out both the recital and the operative part, accurately following the deed, in the former describing the lands as situated in Meath, and in the latter as situated in Kildare. This memorial was entered in the Registry of Deeds, Dublin, on the 28th April, 1881, and the Royal Bank alleged that their mortgage was thereby validly registered within the Registry Acts. On the 19th December, 1882, Richard Gilbert entered into an agreement for a statutory term of the said lands, under the Land Law (Ireland), Act, 1881, at the yearly rent of 306. The plaintiffs were a firm of salesmasters -who had made considerable advances to Richard Gilbert, to enable him to carry on his business as farmer and grazier. Prior to the execution of LAW REPORTS (IRELAND). [L. R. L the mortgage under which the plaintiffs claimed, Gilbert was pressed by the plaintiffs to give some security to them for these advances, and he proposed to give them a mortgage of his interest in the lands of Moygaddy. He stated that there were no charges or incumbrances of any sort affecting these lands, except a mortgage thereof from him to Gavin Low, dated 11th March, 1884, to secure a sum of 474 6s. 6d. The plaintiffs, according to the arrangement then entered into, paid Gavin Low the amount due on this mortgage, and by indenture, dated 25th February, 1886, and made between Gavin Low of the one part, and Richard Gilbert of the other part, the lands of MoyÂÂgaddy were released from this charge. By indenture of mortgage, dated the 25th February, 1886, the defendant Richard Gilbert assigned to the plaintiffs all his interest in the lands of Moygaddy, situate in the barony of Upper Deece, and county of Meath, to hold the same for the said statutory term, subject to the same yearly rent, and also subject to a proviso for redemption on payment by the said defendant of the sum of 1044 12s. 2c1., or such other sum as might thereafter become due, or payable by the defendant Richard Gilbert to the plaintiffs. The situation of the lands was accurately given in this deed, and the plaintiffs had it duly registered on the 1st March, 1886. Previous to the execution of the plaintiffs' mortgage the deÂÂfendant Richard Gilbert made a statutory declaration of the same date as the mortgage, that there were no charges or incumbrances whatsoever affecting his interest in the lands of Moygaddy. There were affidavits sworn by each of the plaintiffs, and by their solicitor, denying notice of the Bank's mortgage, and stating that they believed at the times when the money was advanced on the mortgage of the 25th February, 1886, that the money so advanced was the first charge on the lands. Prior to the execution of the plaintiff's mortgage their solicitor lodged a requisition in the office of the Registry of Deeds in IreÂÂland, for a search for acts by the said Richard Gilbert, from the 1st January, 1870, affecting the lands of Moygaddy, in the barony...