First National Building Society v Ring

• Jurisdiction: Ireland
• Judgment Date: 01 January 1992
• Date: 01 January 1992
• Docket Number: [1991 No. 200Sp.]
• Court: High Court

High Court

[1991 No. 200Sp.]

First National Building Society v. Ring

First National Building Society

Plaintiff

and

Eamonn Ring and Adrienne Ring

Defendants

Cases mentioned in this report—

Containercare Ltd. v. Wycherley [1982] I.R. 143.

O'D. v. O'D. (Unreported, High Court, Murphy J., 18th November, 1983).

Re Whitwell's Estate (1887) 19 L.R. Ir. 45.

Real property - Judgment mortgage - Enforcement - Joint tenancy - Severance - Partition - Sale in lieu of partition - Court's discretion - Family home - Husband being debtor - Registration of judgment mortgage against husband's interest - Creditor seeking order for sale in lieu of partition - Whether good reason to contrary - Relevant factors - Wife's share of net proceeds insufficient to purchase another home - Whether fact that sale would not meet debts valid reason for refusing order - Whether premises being family home can be factor in exercise of court's discretion - Whether absence of right of wife to veto sale relevant - Relevance of absence of information on effect of order for sale or alternatives - Judgment Mortgage (Ireland) Act, 1850 (13 & 14 Vict, c. 29), ss. 6 and 7 - Partition Act, 1868 (31 & 32 Vict., c. 40), s. 4 - Family Home Protection Act, 1976 (No. 27).

Husband and wife - Family home - Incumbrance - Judgment mortgage registered against husband's interest - Joint tenancy - Severance - Enforcement - Order for sale in lieu of partition - Wife's net proceeds of sale insufficient to purchase another home - Discretion of court to refuse order - Wife no right to veto sale - No inquiry regarding feasability of wife retaining premises - Whether fact that premises a family home could be factor in exercise of discretion by court - Judgment Mortgage (Ireland) Act, 1850 (13 & 14 Vict., c. 29), ss. 6 and 7 - Partition Act, 1868 (31 & 32 Vict, c. 40), s. 4 - Family Home Protection Act, 1976 (No. 27).

Statute - Interpretation - Sale in lieu of partition - Court's discretion to refuse order if good reason to the contrary - Family home - Husband's interest vested in creditor pursuant to judgment mortgage - Wife no right to veto sale - Wife a co-owner - Whether the fact that property a family home can be factor in exercise of discretion by court - Partition Act, 1868 (31 & 32 Vict., c. 40), s. 4 - Family Home Protection Act, 1976 (No. 27).

Special Summons.

The special summons was issued against the first defendant on the 7th March, 1991. The first defendant entered an appearance on the 9th April, 1991. On the 13th May, 1991, the High Court (Denham J.) made an order joining the second defendant upon the plaintiff's ex partemotion.

The summons was heard by the High Court (Denham J.) on the 24th June, 1991.

Section 4 of the Partition Act, 1868, provides as follows—

"In a Suit for Partition, where, if this Act had not been passed, a Decree for Partition might have been made, then if the Party or Parties interested, individually or collectively, to the Extent of One Moiety or upwards in the Property to which the Suit relates, request the Court to direct a Sale of the Property and a Distribution of the Proceeds instead of a Division of the Property between or among the Parties interested, the Court shall, unless it sees good Reason to the contrary, direct a Sale of the Property accordingly, and give all necessary or consequential Directions."

Section 3, sub-s. 1 of the Family Home Protection Act, 1976, provides that 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 1 of the Act of 1976 defines "conveyance" as including a mortgage.

On the 8th February, 1990, the plaintiff, complying with the provisions of s. 6 of the Judgment Mortgage (Ireland) Act, 1850, converted a judgment it had obtained against the first...