Dolan v Murphy

• Jurisdiction: Ireland
• Judgment Date: 01 January 1930
• Date: 01 January 1930
• Court: High Court (Irish Free State)

High Court.

Dolan v. Murphy.

THOMAS DOLAN

Plaintiff

and

DAVID MURPHY, Defendant (1)

Land Purchase - Arrears of annuity - Decree for payment - Amount not paid - Proposed sale of holding by Land Commission - Prior suit by mortgagee of the holding - Land Commission not a party - Order for sale in mortgagee's suit - Injunction granted in Circuit Court to restrain Land Commission from intended sale - Appeal - Discharge of order of Circuit Court Judge - Land Commission in position of first mortgagee - Power of sale unaffected.

Appeal from the Circuit Court.

The defendant, David Murphy, was the registered owner of a holding at Ashtown, Ballinafunstoge, in the County of Wicklow, which was vested in him on 29th March, 1923, subject to a Land Purchase Annuity of £19 1s., from 1st June, 1923. The annuity fell into arrear, and on 29th April, 1926, a decree for £9 10s. 6d., a half-yearly instalment, was obtained at Wicklow by the Land Commission. The decree was lodged with the Sheriff, who made a return of "no goods" on the 9th July, 1927. Proceedings for the sale of the holding to recover the arrears due with costs were commenced, and on 24th January, 1928, notice, under sect. 33 of the Land Act, 1927, was published in the Dublin Gazette and the necessary local newspapers advertising the sale of the holding by an auctioneer in the Market House, Wicklow, on 8th February, 1928.

On 3rd February, 1928, the solicitors for the plaintiff, Thomas Dolan, wrote to the Land Commission informing them that the plaintiff, who held a mortgage on this holding, had, on 17th November, 1926, obtained an order from the Circuit Court Judge declaring the amount of the plaintiff's charge well charged on the lands of the defendant, and directing a sale, and the plaintiff's solicitors further stated that, if the sale by the Land Commission were proceeded with, it would be a serious matter for the plaintiff. They asked in their letter that the Land Commission ,sale should not be proceeded with on the 8th February, 1928; or, alternatively, that a reserve price should be fixed, sufficient to recover not only the amount due to the Land Commission but also the amount due to the plaintiff for principal, interest, and costs.

The Land Commission replied to this letter on 4th February, 1928, stating that if by 12 o'clock on Tuesday, the 7th inst., the sum of £19 1s., one year's arrears of instalments, together with £8 costs, making in all £27 1s., was paid, the sale advertised by...