Containercare Ltd v Wycherley

• Jurisdiction: Ireland
• Judgment Date: 01 January 1982
• Date: 01 January 1982
• Docket Number: [1979 No. 341 Sp.]
• Court: High Court

High Court

[1979 No. 341 Sp.]

Containercare Ltd. v. Wycherley

Containercare (Ireland) Limited

Plaintiff

and

Geoffrey Wycherley and Elizabeth Wycherley

Defendants

Cases mentioned in this report:—

¹ Curran v. Curran (High Court: 10th March, 1981).

² Tempany v. Hynes [1976] I.R. 101.

³ Somers v. W. [1979] I.R. 94.

⁴ C. v. C. [1976] I.R. 254.

⁵ Northern Bank v. Henry [1981] I.R. 1.

⁶ Williams & Glyn's Bank Ltd. v. Boland [1981] A.C. 487.

⁷ Guckian v. Brennan [1981] I.R. 478.

⁸ W. v. W. [1981] I.L.R.M. 202.

⁹ Nestor v. Murphy [1979] I.R. 326.

¹⁰ C. v. C. [1981] I.L.R.M. 357.

¹¹ McIlroy v. Edgar (1881) 7 L.R.Ir. 521.

¹² Provincial Bank v. Tallon [1938] I.R. 361.

Judgment mortgage - Registration - Effect - Estate of judgment debtor - Whether estate vested in judgment creditor - Family home - Whether consent of wife of debtor necessary - Estate consisting of share of equity of redemption under prior mortgage - Registration severing joint tenancy of debtor and his wife - Assessment of share of debtor - Judgment Mortgage (Ireland) Act, 1850 (13 & 14 Vict. c. 29), ss. 6, 7 - Family Home Protection Act, 1976 (No. 27), ss. 1-3.

Special Summons.

On the 7th June, 1979, the plaintiff company issued a summons in the High Court claiming a declaration that a judgment for £6000 which the plaintiff had recovered against the first defendant in the High Court on the 12th January, 1979, was well charged on the estate or interest of that defendant in the dwelling-house and premises known as No. 41 Cabinteely Avenue, Cabinteely, in the county of Dublin. The plaintiff also claimed an order directing the sale of those premises, and ancillary relief. By amendment, the plaintiff claimed partition of the premises pursuant to the Partition Acts, 1868-1876. The plaintiff had complied with the provisions of s. 6 of the Judgment Mortgage (Ireland) Act, 1850, and had registered an appropriate affidavit in the Registry of Deeds on the 1st March, 1979, thereby converting his judgment into a judgment mortgage and causing the estate or interest of the first defendant in the premises to be vested in the plaintiff pursuant to the provisions of s. 7 of the Act of 1850, subject to redemption.

Immediately prior to the registration by the plaintiff of the affidavit in accordance with the provisions of s. 6 of the Act of 1850, the defendants (who were husband and wife) held the premises as joint tenants under a lease dated the 26th July, 1973, whereby the premises had been demised to them jointly for a term of years, subject to a mortgage dated the 22nd March, 1974, by which the premises were assured to the Irish Permanent Building Society to secure the repayment of the principal sum and interest therein mentioned.

The premises were the "family home" of the defendants within the meaning given to that term in s. 2 of the Family Home Protection Act, 1976. The consent of the second defendant to the vesting of any interest in the premises in the plaintiff had neither been sought nor given.

Section 7 of the Judgment Mortgage (Ireland) Act, 1850, provides:—

"The registration as aforesaid of such affidavit shall operate to transfer to and vest in the creditor registering such affidavit all the lands, tenements, and hereditaments mentioned therein, for all the estate and interest of which the debtor mentioned in such affidavit shall at the time of such registration be seised or possessed at law or in equity, or might at such time create by virtue of any disposing power which he might then without the assent of any other person exercise for his own benefit, but subject to redemption on payment of the money owing on the judgment, decree, order, or rule mentioned in such affidavit; and such creditor, and all persons claiming through or under him, shall, in respect of such lands, tenements, and hereditaments, or such estate or interest therein as aforesaid, have all such rights, powers, and remedies whatsoever as if an effectual conveyance, assignment, appointment, or other assurance to such creditor of all such estate or interest, but subject to redemption as aforesaid, had been made, executed, and registered at the time of registering such affidavit."

The registration of a judgment as a mortgage under the Act of 1850 in relation to the lands of a judgment debtor who holds them as a joint tenant has been held to sever the joint tenancy: McIlroy v. Edgar¹¹ (1881) 7 L.R.Ir. 521.; Provincial Bank v.Tallon.¹² [1938] I.R. 361.

Section 1 of the Family Home Protection Act, 1976, provides that, for the purposes of that Act, the word "conveyance" includes a mortgage. Section 3, sub-s. 1, of the Act of 1976 states:— "Where a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse, then, subject to subsections (2) and (3) and section 4, the purported conveyance shall be void."

Section 6 of the Act of 1850 provides that a judgment creditor who believes that the judgment debtor owns land may register in the Registry of Deeds an affidavit stating (inter alia) that the judgment debtor, at the time the affidavit is sworn, is seised or possessed at law or in equity of the lands described in the affidavit. Section 7 of that Act provides that the registration of such affidavit shall operate to vest in the judgment creditor all the lands mentioned in the affidavit "for all the estate and interest of which the debtor mentioned in such affidavit shall at the time of such registration be seised or possessed at law or in equity" and that the judgment creditor shall have all the remedies of a mortgagee by deed.

Section 3 of the Act of 1976 provides that where a spouse, without the prior consent in writing of the other spouse, purports to convey (or mortgage) any interest in the family home to any person except the other spouse then "the purported conveyance shall be void."

The defendants, who were husband and wife, lived in a house which had been demised to them jointly for a term of years. In 1974 they assured the house to a building society by a mortgage which secured the repayment to the society of the principal sum which had been advanced to the defendants by the society. Until December, 1977, the first defendant paid all the instalments of principal and interest becoming due under the mortgage of 1974, and thereafter those instalments were paid by the second defendant. The house was a family home for the purposes of s. 3 of the Act of 1976.

Having recovered judgment against the first defendant for a liquidated sum, the plaintiff registered an affidavit in the Registry of Deeds on the 1st March, 1979 (describing the...