Hill v Maunsell-Eyre

• Jurisdiction: Ireland
• Judgment Date: 08 February 1944
• Date: 08 February 1944
• Court: High Court

Hill v. Maunsell-Eyre

SAMUEL RUSSELL HILL and OTHERS

Plaintiffs

and

HELENA AUGUSTA MARIA MAUNSELL-EYREand OTHERS

Defendants.

And in the Matter of the PARTITION ACTS, 1968 and 1876

Practice - Partition - Mortgage - Suit by puisne mortgagee of undivided moiety - Claim for partition combined with claim for raising amount of mortgage on moiety - Whether claims can be joined in the same proceeding - Whether puisne mortgagee of moiety entitled to maintain partition suit.

Plenary Summons brought by the plaintiffs, Samuel Russell Hill, Gladys Mabel Lambert and Muriel Strangman Russell, claiming a declaration that a mortgage, dated the 1st August, 1889, was well charged on an undivided moiety of certain lands in the Lordship of St. Mary's Abbey, in the Parish of St. Mary and City of Dublin, the ascertainment of the amount due and payment thereof, and, in default, a sale of the whole of the lands in lieu of partition, and distribution of the proceeds and other relief.

The first-named defendant, Helena Augusta Maria Maunsell-Eyre, was entitled to the mortgagor's interest in the said mortgage and also to the mortgagee's interest in a mortgage of the other undivided moiety of the lands, dated the 23rd February, 1861. The defendants, William Cox Langford Sullivan, William Kyle Patrick Hogan, and Edward James Alcock were entitled to the mortgagee's interest in the first-mentioned moiety, under a mortgage, dated the 26th August, 1886, and they also were entitled to the mortgagor's interest in the said mortgage of the second moiety which they held in trust for the first-named defendant for life, with remainders over.

The further facts are summarised in the headnote and are sufficiently stated, for the purposes of this report, in the judgment of Overend J.

Plaintiffs, who were mortgagees of an undivided moiety of certain lands, brought a combined mortgagee and partition suit to raise the amount of their mortgage. There were three mortagages prior to, and three puisne to, the plaintiffs' mortgage; the other undivided moiety was subject to one mortgage. The first mortgagees of the first mentioned moiety, the mortgagee of the second moiety and the persons respectively entitled to the equity of redemption in each moiety were all joined as defendants.

Held that the necessary parties were before the Court for the purposes of (a) a suit by the plaintiff mortgagees to raise the amount of their mortgage, and (b) a suit for partition or sale in lieu thereof, and that these claims can be joined in the same proceeding.

Held further that a puisne mortagagee of an undivided moiety of lands is entitled to maintain a suit for the partition of the lands, notwithstanding that the legal estate is not vested in him.

Cur. adv. vult.

Overend J.:—

This action was commenced by the plaintiffs, who are executors, to raise the amount of a mortgage, dated the 1st day of August, 1889, to which their respective testators were beneficially entitled as tenants in common.

The original mortgagor, Mr. Richard Flemyng St. Leger, was entitled to one undivided moiety of the mortgaged premises in fee simple, and this he conveyed to Joshua Forbes Russell and his heirs to secure the repayment of £1,000 and interest as therein. The rate of interest was subsequently reduced by an endorsed deed of 31st July, 1914.

The equity of redemption is now vested in the defendant, Mrs. Helena Augusta Maria Maunsell-Eyre, as surviving trustee of the will of Richard Flemyng St. Leger.

The Examiner's Certificate, filed the 22nd day of April, 1943, finds that there were three mortgages prior, and three puisne, to the plaintiffs' mortgage affecting this undivided moiety; the first mortgage is now vested in the defendants, William C. L. Sullivan, Rev. William K. P. Hogan and Rev. Edward J. Alcock, who are also the owners of the other undivided moiety of the mortgaged premises, as trustees of a settlement, dated the 14th day of May, 1897, and hold the same upon trust for the said defendant Mrs. Maunsell-Eyre, for life with remainders over. This last mentioned moiety is subject to one mortgage, dated the 23rd day of February, 1861, which is now vested in Mrs. Maunsell-Eyre.

The endorsement on the plenary summons, which was issued on the 6th of June, 1940, claimed a declaration that the mortgage of 1st August, 1889, was well charged on the first above mentioned undivided moiety, ascertainment of the amount due and payment thereof, and, in default, a sale of the whole in lieu of partition, and distribution of the proceeds and other relief.

The statement of claim, delivered 31st July, 1940, inverts

the order in which relief is claimed, praying sale in lieu of partition, enquiries as to the persons interested and as to incumbrances, and distribution of the proceeds of sale, etc., and, alternatively, in the event of the Court decreeing partition, a declaration of charge on, and sale of, the moiety subject to the plaintiffs'...