Fisher v Cohan

• Jurisdiction: Ireland
• Judgment Date: 22 June 1893
• Date: 01 January 1894
• Docket Number: (1893. No. 270.)
• Court: Queen's Bench Division (Ireland)

Fisher

and

Coan.

V.-C.

(1893. No. 270.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREPROM IN

THE COURT OF APPEAL.

1894.

Specific performance — Sale under power in mortgage — Land Law (Ireland) Act, 1881, s. 1 — Right of pre-emption.

The defendant, by an agreement dated the 7th February, 1893, contracted to sell to the plaintiff a farm of land, held under contract of tenancy from year to year at a judicial rent, of which he was mortgagee. The defendant failed to carry out the sale, and relied on the bankruptcy of the mortgagor and on the non-service on the landlord of notice under the Land Law (Ireland) Act, 1881, section 1, as a defence to the action for specific performance:—

Held, that the mortgage was not a sale within section 1 of the Land Law (Ireland) Act, and that the landlord had not a right of pre-emption.

Specific performance of the contract for sale decreed.

Trial of Action for specific performance of an agreement, dated the 7th February, 1893, whereby the defendant agreed to sell, and the plaintiff to purchase a farm of land, situate at Bally-morran, in the parish of Killinchy, barony of Dufferin, and county of Down, for £275. The premises were held by Bingham Calvert, as tenant from year to year, and by him mortgaged to the defendant by deed dated the 4th June, 1892. The said Bingham Calvert was adjudicated bankrupt on the 6th February, 1893. The defendant, under the power of sale in his mortgage, put up the premises for sale by public auction, but the bidding being insufficient the sale was not carried out. Subsequently the plaintiff, who had bid £265 at the auction, agreed to purchase the premises for £275, subject to the conditions of sale under which the premises were originally put up for sale, and paid £56 17s. 6d. deposit. There had been a spirit grocer's license attached to a house on the premises, which, under one of the conditions, was to be allowed to drop. The defence pleaded relied on the bankruptcy of the mortgagor.

Hume, for the plaintiff:—

The bankruptcy of the mortgagor is no answer to this action against the mortgagee on his contract. There is no evidence that this chattel interest ever vested in the assignees in bankruptcy. The defendant cannot rely on the condition that the license is to be dropped to avoid the contract. He seeks to rely on his own breach of trust, if it be a breach of trust. There is...