Harris v O'Loghlen. Freeman v O'Loghlen. Stuart v O'Loghlen

• Jurisdiction: Ireland
• Judgment Date: 23 April 1888
• Date: 23 April 1888
• Court: Chancery Division (Ireland)

Appeal.

HARRIS

and

O'LOGHLEN.

FREEMAN

and

O'LOGHLEN.

STUART

and

O'LOGHLEN.

M'Dowell v. Wheatly 7 Ir C. L. R. 562.

Hatton v. EnglishENR 7 E. & B. 94.

Thorp v. BrowneUNK 16 Ir. Ch. Rep. 365; on appeal — L. R. 2 H. L. 220.

Slator v. SlatorUNK 16 Ir. Ch. Rep. 488.

In re Fitzgerald (Francis)UNK 11 Ir. Ch. Rep. 278.

In re Power's Estate Ibid. 288.

In re Fitzgerald (Thomas)UNK 11 Ir. Ch. Rep. 356.

In re Smith and Ross Ibid, 397.

In re Gray Ir. R. 1 Eq. 265.

Davies v. Kennedy Ir. R. 3 Eq. 31.

In re Smith and RossUNK 11 Ir. Ch. Rep. 397

Ex parte Magrath Ibid. 356.

Thorp v. BrownELR L. R. 2 H. L. 220.

Davies v. Kennedy Ir. Rep. 3 Eq. 31.

In re Fitzgerald's Estate; Ex parte MagrathUNK 11 Ir. Ch. Rep. 356.

Thorp v. Brown Ibid. 233.

Re Smith and Ross 11 Ir. Ch. R. 401.

Re Fitzgerald's Estate 11 Ir. Ch. R. 356.

Judgment mortgage — Affifavit to register — 13 & 14 Vict. C. 29 — 21 & 22 Vict. C. 105 — Description of defendant in recital of judgment.

VOL. XXITT.] CHANCERY DIVISION. 61 HARRIS v. O'LOGHLEN. M. R. 1888. An affidavit to register a judgment as a mortgage, under 13 & 14 Viet. c. 29, was intituled " L. H., plaintiff ; B. O'L., defendant, and the Act 13 & 14 Viet. c. 29." It stated "that the plaintiff, by the name and description of L. H., of S.-street, in the city of Dublin, jeweller,' did, on the 22nd April, 1857, and as of Easter Term in said year, obtain a judgment in Her Majesty's Court of Common Pleas in Ireland against the defendant in this cause by the name and description of B. O'L., of Lower M.-street, in the city of Dublin, barrister-at-law,' for the sum of £4000 sterling, for debt, besides £3 2s. 8d. for costs, as by the records of said Court may appear ; that, to the depoÂnent's knowledge and belief, the said B. O'L. is, at the time of swearing this affidavit, seized or possessed at law or in equity of, or has a disposing power which he may (without the assent of any other person) exercise for his own benefit over, certain lands, tenements, and hereditaments, and premises hereÂinafter mentioned-that is to say, &c. [describing the lands] ; that the sum of £2003 2s. 8d., so secured by the said judgment as aforesaid remains justly due and owing to this deponent B. O'L., and said judgment is still in full force and effect in law" : Held, by the Master of the Rolls and by the Court of Appeal, that the affiÂdavit contained a sufficient statement of the trade or profession and usual or last-known place of abode of the plaintiff and defendant in the judgment, as required by the Act, and that the registration was valid. In re Smith and Ross (11 Ir. Ch. Rep. 397), In re Fitzgerald's Estate ; Ex parte Magrath (11 Ir. Ch. Rep. 356), and In re Gray's Estate (Ir. Rep. 1 Eq. 265), followed. M'Dowell v. Wheatly (7 Ir. C. L. R. 562) commented on, and in effect overruled. THIS case came on to be heard before the Court, on a charge filed by Miss Bidelia O'Loghlen, who claimed under a mortgage dated the 3rd June, 1858, of the lands over which the receiver had been appointed in the three causes, in priority to the claim of the personal representative of Lewis Harris (the plaintiff in the first Vox,. XXIII. 62 LAW REPORTS (IRELAND). [L. R. I. M. R. cause), on foot of a judgment mortgage of the 22nd April, 1857, by 1888. whom a discharge was filed, raising several defences to the charge. HARRIS In the result the question argued, and now decided by the Master V. LOGRLEN. of the Rolls, was the validity of the judgment mortgage of Lewis Harris, the other questions having been disposed of. The proÂceedings in the causes and the facts which raised the question are very fully stated in the judgment. Mr. Carton, Q.C., and Mr. Orpen, for Miss O'Loghlen, in support of the charge : 1st. The original affidavit to register Harris' judgment was invalid, as not stating by positive averment, or- otherwise than by a recital of the judgment, " the usual or last known place of abode, and the title, trade, or profession of the plaintiff, and of the defendant, or person whose estate is intended to be affected by the registration," as required by the 13 & 14 Viet. c. 29, sect. 6: .P.Dowell v. Wheatly (1). 2ndly. The defect was not cured by the supplemental affidavit of the 29th June, 1859 ; for the 21 & 22 Viet. c. 105, sect. 1, under which it was filed, requires the " usual and last known place of abode " of the defendant to be stated ; and it appears from the evidence that the defendant had left Lower Mount-street, which is stated in the supplemental affiÂdavit as his place of abode, nearly a year before the filing of that affidavit. See also Hatton v. English (2). Mr. P. F. White, Q. C., Mr. Houston, Q. C., and Mr. Bodkin, for Mrs. Harris : If there was any defect in the original affidavit it was cured by the supplemental affidavit, which must be taken to be incorÂporated in, and as part of, the original affidavit, in which the resiÂdence of the defendant was correctly described at the time it was made. But we contend that the original affidavit was perfectly valid, for MTowell v. Wheatly (1), under which it was supposed to be invalid, has been modified and corrected by subsequent authorities. The title of the cause was stated in the affidavit. The test now established is this : Was the defendant misled or (1) 7 Ir. C. L. R. 562. (2) 7 E. & B. 94. VOL. XXIII.] CHANCERY DIVISION. 63 likely to be misled by the statements in it ?-Thorp v. Browne (1) ; M. R. Slator v. Slator (2) ; In re Fitzgerald (Francis) (3) ; In re Power's 1888. Estate (4) ; In re Fitzgerald (Thomas) (5) ; In re Smith and Mums Ross (6); In re Gray (7); Davies v. Kennedy (8). O'LOGHLEN. PORTER, M.R. :- Mr. (now Sir Bryan) O'Loghlen was, in 1857, and has been Feb. 16. ever since, tenant for life of certain lands in the county of Clare, subject to incumbrances. On the 22nd April, 1857, Lewis Harris (since deceased) obtained a judgment against him for £4000 debt, and costs, and on the same day registered in the proper office an affidavit for the purpose of obtaining a statutory mortgage pursuant to the 13 & 14 Vict. c. 29. On the 3rd June, 1858, Bryan O'Loghlen mortgaged his life estate in the same lands by deed to his brother Sir Colman O'Loghlen (since deceased), to secure £2000, and interest at 5 per cent. Lewis Harris, who had the reputation of being a man of intelligence, having, as I should conjecture, somehow heard of this transaction as being in contemplation, and possibly, too, having heard of the decision in 21PDowell v. Wheatly (9), pronounced on the 8th May, 1858, would seem to have had misÂgivings as to the validity of his judgment mortgage of April, 1857. Accordingly, on the 7th June, 1858, he made a fresh affidavit to register, which was registered in the Deeds Registry Office on the 8th, which affidavit is, undoubtedly, valid in form and substance. But unhappily for him it was too late, the deed of the 3rd June having been executed before. Of course nothing turns upon the date of the registration of that deed. The O'Loghlens, at any rate, knew all about M`Dowell v. Wheatly (9), as Sir Colman O'Loghlen argued that case as counsel. Thus matters stood till the passing of 21 & 22 Vict. c. 105, which received the royal assent on the 2nd August, 1858, and which was passed to prevent the mischief occasioned by the decision of 111'Dowell v. Wheatly (9). That statute enacts, section 1, " That wherever it shall appear (1) 16 Ir. Ch. Rep. 365; on appeal (5) 11 Ir. Ch, Rep. 356, -L. R. 2 H. L. 220. (6) Ibid. 397. (2) 16 Ir. Ch. Rep. 488. (7) Ir. R. 1 Eq. 265. (3) 11 Ir. Ch. Rep. 278. (8) Ir. R. 3 Eq. 31. (4) Ibid. 288. (9) 7 Ir. C. L. R. 562. G 2 LAW REPORTS (IRELAND). [L. R. I. M. R. that any of such facts appear or have been so stated, recited, or 1888. referred to, on the document so registered as an affidavit under the HARBIB said recited Act, before the passing of this Act, but are not included v. OloanuaT. in or under the verification on oath therein contained, it shall and may be lawful for the creditor under any such judgment, decree, order, or rule, or for any person entitled, whether legally or equitably, to the sum payable in respect of the same, or any part thereof, or for any person who would then be entitled to register an affidavit of such judgment, decree, order, or rule, so theretofore sought to be registered as aforesaid, on or before the 1st July, 1859, to make and file in addition to the original affidavit in the Court in which such original affidavit shall have been filed a supÂplemental affidavit verifying any such fact or facts so theretofore stated, recited, or referred to as aforesaid." This statute, therefore, gave Lewis Harris the chance of reÂtrieving the error, if any, in the registration of the 22nd April, 1857; and he attempted to avail himself of it by registering a supplemental affidavit, which he did on the 29th June, 1859. Had this registration been valid, as beyond doubt he thought it was, the question now before me could not have arisen, as it would have undoubtedly set up his judgment-mortgage of 1857 in its due priority. But, for reasons which I shall presently mention, that supplemental affidavit was itself erroneous and ineffective. By deed, dated the 1st April, 1861, Sir C. O'Loghlen, in consiÂderation of £2300, stated to be due by him to Bidelia and Lucy O'Loghlen, his sisters, assigned and conveyed to them his mortÂgage of the 3rd June, 1858, as security ; and Bidelia O'Loghlen, the survivor of these two sisters, now claims to be entitled to the mortgage-money, subject to a sub-mortgage to Denis Freeman, who is the plaintiff in the second suit, on foot of a different incumÂbrance. The proceedings are stated in the charge, and they were as follows :-On the 9th November, 1868, the said Lewis Harris filed his bill in the first cause, praying (amongst other things) for a sale of the lands and for the appointment of a receiver over the same, on foot of said judgment mortgage...