GARDINER v BLESINTON. [Chancery.]

• Jurisdiction: Ireland
• Judgment Date: 13 December 1850
• Date: 13 December 1850
• Court: Chancery Division (Ireland)

Chancery.

GARDINER

and

BLESINTON.

Malcolm v. Charlesworth 1 Kee. 63.

Rochard v. FultonENRUNK 1 Jo. & Lat. 413; S. C. 7 Ir. Eq. Rep. 131.

Wilmot v. Pike 9 Jurist, 842.

Bushell v. Bushell 1 Sch. & Lef. 90.

Drew v. Lord NorburyENRUNK 3 Jo. & Lat. 267; S. C. 9 Ir. Eq. Rep. 171, 524.

Warburton v. IvieENR 6 Bli. N. S. 1; S. C. 2 Dow. & Clark. 480.

Jones v. JonesENR 8 Sim. 633.

Gubbins v. GubbinsUNK 1 Dru. & Wal. 160, n.

Dillon v. Costello Cited 1 Jo. Exch. Rep. 410.

Rodger v. Tuthill Molesworth on Registration, 35.

Pearce v. MorrisENR 2 Ad. & E. 96.

Queen v. The Inhabitants of FordhamENR 11 Ad. & E. 73.

Gubbins v. Gubbins Ubi sup.

Hardey v. GreenENR 12 Beav. 182.

Battersby v. RochfortENR 2 Jo. & Lat. 431.

Barlow v. Smythe 1 Jo. Exch. Rep. 407, 412.

Malcolm v. CharlesworthENR 1 Keen. 63.

The King v. Poor-law CommissionersENR 6 Ad. & El. 1.

The King v. The inhabitants of Great BoltonENR 8 B. & C. 71.

per Tenterden, C. J.; Mozer v. NewmanENR 6 Bing.561.

Drew v. Lord NorburyENR 3 Jo. & Lat. 300, 302.

Malcolm v. CharlesworthENR 1 Keen, 63.

Bushell v. Bushell 1 Sch. & Lef. 90.

Dillon v. Costello Referred to in 1 Jo. Exch. Rep. p. 410, and in Molesworth on Registration, p. 10.

Gubbins v. GubbinsUNK 1 Dru. & Wal. 160, n.

CHANCERY REPORTS. 79 1850. Chancery. GARDINER v. BLESINTON. (Chancery.) Dec. 7, 13. Tins case now came on to be heard by way of appeal from the A, being en- order of his Honour the MASTER of THE Rom.s. In addition to the titled to the benefit of cer facts reported supra, p. 63, an affidavit by Mr. Mountjoy Martyn's tain articles o nt f agreeme en- solicitor was produced, which stated that with a view to ascertain tered into by the owners of approximately the number of deeds registered in the year 1842, of lauds situated in Ireland to which the memorials do not contain the names of the parish or execute tobira a mortgage barony of the lands whereof the deeds were conversant, he made a thereof for 42,000, by diligent search in Nos. 1 and 2 of the abstract books for the year a deed exe cuted in 1840, 1842, of which there were altogether twenty-five. That in No. 1 reciting the ar ticles, assigned there appeared to be sixty-five deeds registered not containing that sum, with all the sects either the barony or the parish ; that in No. 2 there were fifty-eight rides for its to, payment, such deeds, and that taking the average from these data, there were trustees upon trusts. upwards of 1500 deeds registered in 1842 not containing either certain By a deed parish or barony. That similar searches and averages gave the executed in England in number of deeds registered in 1845 not containing the names of 1842, also re citing the arti the barony or parish, as 1500, and in the year 1849 as 1450. That des, A, for valuable con in addition to the deeds registered in the years 1842, 1845 and sideration, assigned the 1849, omitting the names of the parish and the barony, there were same sum of 42,000, with many deeds registered, in those years, which, although containing an the securi- ties for its pay- the barony, omitted the parish, and vice versa. ment, to M. by way of mortÂÂgage. The Mr. Christian and Mr. Hickey, for Mr. Mountjoy Martyn. deed of 1842 was registered The deed of the 22nd of January 1842 falls within the scope of previously to that of 1840. The memo rial of the deed of 1842 described the lands, on which the 42,000 was charged, in the same manner as they were described in that deed itself ; but neither the deed or memorial mentioned the names of the baronies or parishes in which the lands were situated. Held, that the deed of 1842 was properly the subject of registry. Held also, reversing the decision below, that, notwithstandinc, the omission from the memorial of the names of the baronies and parishes, the deed of 1842 was proÂÂperly registered, and therefore had gained priority over the deed of 1840. 80 CHANCERY REPORTS. the Registry Acts, and is not governed by Malcolm v. Charles-worth (a), which was the case of the assignment of a legacy merely. Mr. Martyn is in the position of an equitable mortgagee and also of a vendor retaining his lien. The statute 6 Anne, c. 2, is very comprehensive in its range, as appears from the preamble and from the 3rd section, which directs the registry of all deeds and conveyÂÂances, " whereby any honours, manors, lands, &c., may be anywise affected." That mortgages are within it, is evident from the statute 8 G. 1, c. 2, s. 5. This point is ruled by Rockard v. Fulton (b); Wilmot v. Pike (c); Bushell v. Bushell (d); Drew v. Lord Nor-bury (e); Warburton v. Ivie (f); Jones v. Jones (y). The second question, viz., as to whether the necessary formalities have been observed in the registration of the deed, is not now open to the other side, because the Master has by his report found that the deed was duly registered. At all events the objection that the memorial does not contain a statement of the barony or parish in which the lands are situated, cannot be sustained. It is manifest that the statute 6 Anne, c. 2, does not enjoin any greater particularity of description than that supplied by the deed itself. The 4th, 5th and 7th sections of that Act all take the distinction between lands contained or comprised, and lands expressed in the deed. The decisions on this Act show what latitude of description is allowed : Gubbins v. Gubbins (h); Dillon v. Costello (i); Rodger v. Tuthill (k). This deed having been executed in England, the registry of it falls within the statute 3 G. 4, c. 116, which dispenses with the necessity of producing the deed to the Registrar, but does not in any other respect infringe upon the provisions of the statute of Anne. The 10th section of the statute 9 G. 4, c. 57, prohibiting the Registrar from granting a certificate of registry of any memorial (a) 1 Kee. 63. (b) 1 Jo. & Lat. 413 ; S. C. 7 Ir. Eq. Rep. 131. (c) 9 Jurist, 842. (d) 1 Sch. & Lef. 90. (e) 3 Jo. & Lat. 267 ; S. C. 9 Ir. Eq. Rep. 7 71, 524. (f) 6 Bli. N. S. 1 ; S. C. 2 Dow. & Clark. 480. (g) 8 Sim. 633. (h) 1 Dru. & Wal. 160, n. (i) Cited 1 Jo. Exch. Rep. 410. (k) Molesworth on Registration, 35. CHANCERY REPORTS. 81 unless it specified the barony or parish, or both, being deemed inconvenient by the Legislature, has been repealed by the statute 2 & 3 W. 4, c. 87. That statute was passed, not for the purÂÂpose of interfering with the validity of the registration of deeds, or with their priority, but for the purpose of creating increased facilities of reference in the official department.-[Counsel here commented at length on the 29th and 30th sections of the statute 2 & 3 W 4, c. 87.]-There are not any negative words in the 30th section of the statute. In the absence of such words a statute will be deemed directory only, as appears from the observations of Taunton, J., in Pearce v. Morris (a). Where such words...