Hilliard v Moriarty

• Jurisdiction: Ireland
• Judgment Date: 02 March 1894
• Date: 01 January 1894
• Docket Number: (1885. No. 7781.)
• Court: Queen's Bench Division (Ireland)

Hilliard

and

Moriarty.

V.-C.

Appeal.

(1885. No. 7781.)

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREPROM IN

THE COURT OF APPEAL.

1894.

Costs — Administration suit — Sale of mortgaged property — Proceeds insufficient to pay mortgage debt — Other assets insufficient to pay costs — Costs of sale.

In a creditor's suit for administration, the property of the deceased was sold in lots, some of which were subject to a mortgage. The mortgagee, who had not proved as an ordinary creditor, and was returned in the Chief Clerk's certificate only as an incumbrancer, was aware that the property was to be sold, and gave assistance in reference to title, &c. The lots subject to the mortgage did not realize sufficient to pay the amount due to the mortgagee, and the remainder of the assets was insufficient to pay the costs of suit, including those of the sale:—

Held, by the Vice-Chancellor, that a proportionate part of the costs of the sale should be paid out of the amount realized by the sale of the lots subject to the mortgage.

Held, by the Court of Appeal (reversing the decision of the Vice-Chancellor), that no part of the costs of the Bale should be borne by the proceeds realized thereby.

In a creditor's administration action the ordinary rule is that a mortgagee does not lose his priority by consenting to a sale of premises mortgaged to him by the deceased, nor does he thereby undertake to pay the costs of the sale in the event of there being a deficiency.

Application on Summons by the plaintiff that on allocation, out of the sum of £635, representing the purchase-money of lots 1 and 2 in the particulars and conditions of sale, the sum of £62 9s. 1d., being proportion of the costs of sale of premises sold, be set aside to be paid to the plaintiff for the costs of realizing the said sum of £635.

This was a creditor's suit for administration of the real and personal estate of Jonathan Moriarty. The property was put up for sale in four lots, and realized, lot 1, £455; lot 2, £180; lot 3, £300; and lot 4, £215. The purchaser of lot 3 applied to be discharged. His application was refused, and expense was incurred by the plaintiff to compel him to carry out his purchase, which he ultimately failed to do; and there being an arrear of rent greater than the value of the interest, ejectment proceedings were taken by the landlord and he recovered possession.

By the Chief Clerk's certificate it was found that lots 1, 2, and 3 were subject to a mortgage vested in the Hon. B. A. de Moleyns, on which there was due, including a salvage claim for rent paid, £650 2s. 1d.

The Hon. E. A. de Moleyns did not prove as an ordinary creditor, nor value his security; he was returned only as an incumbrancer on lots 1, 2, and 3, and was aware the property was to be sold.

An affidavit of Mr. Mac Gillycuddy, one of the solicitors for the plaintiff, stated that not considering it certain that there would be any surplus on the sale of lots 1, 2, and 3, after paying the amount due to the mortgagee, he discussed the matter with him, and suggested that he should contribute towards the costs of sale. The Hon. E. A. de Moleyns did not actually promise, but he did not decline to do so, and he gave assistance in the preparation of the rental and making title. He also desired the application of the purchaser of lot...