Harris v Shee

• Jurisdiction: Ireland
• Judgment Date: 27 April 1844
• Date: 27 April 1844
• Court: Court of Chancery (Ireland)

Harris

and

Shee.

Chancery.

CASES

IN THE

COURTS OF CHANCERY, ROLLS,

AND

Equity Exchequer.

The defendant in a foreclosure suit, not having complied with the order in the decree to bring in the title deeds, the Court, on motion, referred it to the Master to appoint a receiver, although the decree was merely for a sale, and did not direct a receiver to be appointed.

The decree in this cause, which was a foreclosure suit, directed payment of the sum reported due to the plaintiff, with interest and costs, and in default, a sale of the lands in the pleadings mentioned. It contained the usual order, that all parties should bring in the title deeds of the lands decreed to be sold within three months. The defendant not having brought in the title deeds, the plaintiff, on the 7th of February 1844, moved for a receiver at the Rolls, and obtained an order enlarging the time for payment of the sum due until the first day of Easter Term; but in default of payment, directing a reference to the Master to appoint a receiver. From this order of his Honor the defendant appealed.

Mr. James Dwyer, for the defendant.—The application should have been made to this Court, and not at the Rolls: Keown v. Keown (a). The decree is for a sale only, and not for a receiver. It was taken at the election

of the plaintiff himself, and there is no allegation of the insufficiency of the fund: M'Gough v. Magee (a); Drought v. Perceval (b).

Mr. Brewster, Q. C., and Mr. Wall, contra.—The 138th Rule prevented the sale until the title deeds were lodged. The defendant has not yet lodged them, although the decree contained an order to that effect. This was the principal ground relied on at the Rolls. Another ground urged at the Rolls was, that Shee filed a bill impeaching the decree; and the estate could not be sold pending the suit.

Mr. W. Brooke, Q. C., in reply.—If the deeds are not brought in, the Court arms the plaintiff with ample powers to enforce the order. The course adopted is not the proper one. This is an appeal, and we must confine ourselves to the documents which appeared at the Rolls. The notice of motion contains nothing on this subject; the decree merely directs a sale, and that is all the plaintiff is entitled to. In M'Gough v. Magee (a), Lord Manners says:— “Where there is a decree for a sale of lands to discharge an encumbrance on them, unless they are an insufficient fund a receiver is not granted in the interim, as it is a very expensive proceeding.” There is no change...