Hibernian Bank v Cogan

• Jurisdiction: Ireland
• Judgment Date: 01 January 1944
• Date: 01 January 1944
• Court: High Court

Hibernian Bank v. Cogan.

THE HIBERNIAN BANK LIMITED

Plaintiffs

and

CHARLES COGAN (Junior), MARY COGAN (his Wife) and JAMES J. DOYLE, Official Assignee in Bankruptcy

Defendants.

Land Purchase Acts - Charge on holding subject to land purchase annuity - Restriction on mortgaging or charging - Charge in excess of permitted amount - Deed of charge executed in May, 1923, as security for present and future advances - Promissory note as collateral security - Payments made and fresh notes given from time to time for balance - Last note given in 1931 dishonoured and no further payments made - Whether balance due as a new and distinct transaction or on foot of original advance - Whether deed of charge valid for whole of balance due - Restriction on amount of charge under the Irish Land Act, 1903 (3 Ed. 7, c. 37), s. 54, sub-s. 3 -Repeal of restriction by the Land Act, 1923 (No. 42 of 1923), s. 78 - Whether notwithstanding repeal, the restriction still attached to the deed of charge.

Sect. 54, sub-s. 3, of the Irish Land Act, 1903 (3 Ed. 7, c. 37) provides that the proprietor of a holding, for the purchase of which the Land Commission have made an advance under the Land Purchase Acts, shall not, without the consent of the Land Commission, mortgage or charge the holding for any sum or sums exceeding in the aggregate ten times the amount of the purchase annuity, and that every instrument of mortagage or charge by which the holding is charged with any larger sum shall be null and void as to the excess. By s. 78 of the Land Act, 1923 (No. 42 of 1923), passed on 9th August, 1923, s. 54, sub-s. 3, of the Irish Land Act, 1903, was repealed.

A Bank advanced the sum of £800 to C., who was the proprietor of a holding which had been purchased under the Land Purchase Acts and was subject to a purchase annuity of £29 5s. 0d.. By deed of charge, dated 10th May, 1923, C. charged the holding with all monies due to the Bank and all"future advances," which latter term was expressed to include, inter alia,all sums from time to time due by C. to the Bank on foot of promissory notes. At the same time a promissory note for the amount of the advance was given by C. and two other persons as collateral security.

When the promissory note came to maturity, something was paid by C. off the debt and a fresh note given for the balance. This procedure was repeated from time to time, and by the 14th July 1931, the principal debt had become reduced to £560. A fresh note—the last one—was...