Irish Bank of Commerce v O'Hara

• Jurisdiction: Ireland
• Judge: FINLAY C.J.,McCarthy J.
• Judgment Date: 07 April 1992
• Neutral Citation: 1992 WJSC-SC 564
• Court: Supreme Court
• Date: 07 April 1992

1992 WJSC-SC 564

THE SUPREME COURT

Finlay C.J.

McCarthy J.

O'Flaherty J.

245/89

IRISH BANK OF COMMERCE v. O'HARA

THE IRISH BANK OF COMMERCE

Plaintiff/

Respondent

and

JOHN O'HARA

Defendant/

Appellant

Citations:

JUDGMENT MORTGAGE ACT 1850 S6

CREDIT FINANCE CO LTD V GRACE UNREP SUPREME 9.6.72

DARDIS & DUNNS SEEDS LTD V HICKEY UNREP KENNY 11.7.1974 (SEE WYLIE CASEBOOK ON IRISH LAND LAW 479)

ARCHER V THE EARL OF CALEDON 1894 2 IR 476

LOCAL GOVT (DUBLIN) ACT 1930 S3

LOCAL GOVT (DUBLIN) ACT 1930 S3(7)

LOCAL GOVT (DUBLIN) ACT S3(5)

MUNICIPAL CORPORATION (IRL) ACT 1840

PUBLIC HEALTH (IRL) ACTS

LOCAL GOVT (IRL) ACTS

THORP V BROWN 1867 LR 2 HL 220

FITZGERALD, IN RE 11 IR CH R 356

SMITH & ROSS, IN RE 11 IR CH R 401

HARRIS V O'LOGHLEN 1888 23 LR IR 61

MCDOWELL V WHEATLEY 7 ICLR 562

MURPHY & MCCORMACK, IN RE 1930 IR 322

FLANNERY, IN RE 1971 IR 10

JUDGMENTS (IRL) ACT 1850 S6

MADDEN ON DEEDS 2ED 239

JUDGMENT MORTGAGE ACT 1850

Synopsis:

JUDGMENT

Conversion

Judgment mortgage - Creditor - Affidavit - Contents - Statutory requirements - Compliance - Description of debtor's lands - Name of parish omitted - Lands not proved to be in a town - Registration of affidavit valid - (245/89 - Supreme Court - 7/4/92)

|Irish Bank of Commerce v. O'Hara|

REAL PROPERTY

Incumbrance

Judgment mortgage - Validity - Affidavit - Registration - Con tents of affidavit - Statutory requirements - Compliance - Description of land without reference to parish - Valid registration - Lands not proved to be in a town - Judgment Mortgage (Ireland) Act, 1850, ss. 6, 7 - (245/89 - Supreme Court - 7/4/92)

|Irish Bank of Commerce v. O'Hara|

1 JUDGMENT delivered on the 7th day of April 1992by FINLAY C.J. [O'Flaherty J. concurring]

2 This is an appeal brought by the first-named Defendant John O'Hara against an order made in the High Court on the 10th May 1989 by Costello J., declaring

3 1. That there was due to the Plaintiff by the Defendant on foot of a judgment mortgage a sum of£312,824.72 for principal and a sum of £422,432.33 for interest up the the 9th May 1989, and for the costs of the registration of the office copy judgment mortgage affidavit, making together the sum of £735,256.55, and declaring that the said sum on foot of the said judgment mortgage was well charged on the Defendant's interest in "all that and those the lands, hereditaments and premises known as Ashurst, Military Road, Killiney, Borough of Dun Laoghaire, Barony of Rathdown and County of Dublin" and for the further and consequential relief. The sole issue arising on this appeal was a submission that the order of the High Court should be set aside upon the grounds that the amount of the said judgment debt was not well charged on the lands, by reason of the non compliance of the affidavit of judgment mortgage registered against the Defendants" interest in the said lands with section 6 of the Judgment Mortgage Act 1850.

4 The asserted non-compliance with the terms of the said section arising from the judgment mortgage affidavit was the failure to state the name of the parish in which the premises were situate.

5 It is of considerable importance with regard to the general principles applicable to the questions of law raised on this appeal that no submission was made or could conceivably be made that the absence from the description of the property contained in the judgment mortgage affidavit could lead to any lack of certainty in, or introduce any ambiguity into the description of the lands against which the judgment mortgage was sought to be charged.

6 In short, therefore, the Defendant in making the only submission which he does make in relation to his appeal against the order made in the High Court, has no merits of any description. He does not and cannot contest that he owes the sums sought to be charged against the land to the Plaintiff, nor that he had theinterest in the lands described in the judgment mortgage affidavit at the time when the judgment mortgage was sought to be registered.

7 The requirement of justice would, undoubtedly, be that the appeal should be dismissed and the Plaintiff entitled to realise the security which they seek to have declared well charged. The issue for the Court may, under certain circumstances, conceivably therefore be as to whether if the judgment mortgage affidavit failed strictly to comply with the terms of section 6 of the Act of 1850 justice must, in this particular instance, be subordinated to the strict requirements of the law.

8 With regard to this issue, upon the submissions made in the High Court and again on the hearing of this appeal, three sub-issues arose.

9 The first of those was as to whether, upon the true interpretation of the relevant portion of the provisions in section 6 of the Act of 1850, it was required by the statute to insert in the descriptionof property which was situate otherwise than in a "town or county of a city" or a "town", the name of the parish in which the property was situated.

10 The second issue which then arose was whether by reason, in the description of the property contained in the judgment mortgage affidavit in this case, a recital that the property was situated in the "Borough of Dun Laoghaire" constituted evidence from which the Court must conclude that it was situated in a town.

11 The third issue which arose, though only in the event of certain decisions on the first two issues arising, was whether if it was concluded that having regard to the strict terms of section 6 of the Act of 1850 the name of the parish should have been inserted in the description of the premises contained in the affidavit of judgment mortgage the Court, being satisfied that the actual description contained in that affidavit was sufficient, without doubt, to identify the premises and its location, was obliged to hold theregistration of the judgment mortgage invalid.

The relevant portion of section 6 of the Judgments (Ireland) Act1850 (13 & 14 Vict, c.29)

12 Section 6 of the Act of 1850, having provided for the making and filling in the Supreme Court by a judgment creditor of an affidavit stating the name or title of the cause or matter and various other details concerning the debt and judgment, continues to provide as follows:

".......... and such affidavit shall specify the county and barony, or the town or county of a city, and parish, or the town and parish, in which the lands to which the affidavit relates are situate, and where such lands lie in two or more counties or baronies, or parishes or streets, or partly in one barony, parish, or street and partly in another, the same shall be distinctly stated in suchaffidavit;"

13 If the true grammatical interpretation of this portion of the section were unaffected by any previous decisions, I would be quite satisfied that it should be interpreted upon the basis that where lands, tenements or hereditaments were situated in

14 (1) the town of a city, or

15 (2) the county of a city, or

16 (3) a town,

17 that it was necessary to insert into the affidavit and specify the parish in which they were situated. Where, however, lands were elesewhere situated, not being in any of these three categories, that it was necessary to specify the county in which such lands were situated and the barony as well.

18 Upon such a construction it would follow that in relation to lands which required the specification of the parish in which they were situate there was no necessity to specify the barony. On the other hand, in lands which required the specification of the barony there was no obligation to specify the parish.

19 This interpretation is not, however, unaffected nor, indeed, unsupported by previous decisions. In the case of Credit Finance Co. Ltd. v. Michael Grace in which a reserved judgment was delivered by O Dalaigh C.J. onthe 9th June 1972, which constituted the unanimous decision of a full court, this court dealt with a question of non-compliance with section 6 of the Act of 1850.

20 As appears from the judgment, two objections were taken with regard to the requirement of that Act and, dealing with the second of them, the learned Chief Justice at page 3 of the typed version of the unreported judgment states as follows:

"The second objection is with regard to the requirement of the Judgment Mortgage Act that the affidavit should specify the county and barony or town or county of a city and parish, or town and parish in which the lands to which the affidavit relates are situate. These requirements are met in the affidavit to the extent that the description of the lands therein, as part thereof, specifies the county of the city and the parish, in which the lands are situate. The submission on behalf of the judgment debtor is this is not enough and that the affidavit, to satisfy the statute should contain a positive averment by the addition of some such words as: "which said lands are situate in the County of the City of Dublin and the parish of Raheny"."

21 Considering the judgment in that case and the terms of the description contained in the affidavit of judgment mortgage quoted in that judgment, it is clear that the contention being made, and concession being made, with the approval of the court was to the effect that if, as was the situation there, the lands were situated in the county of a city that the specification of the parish was a requirement, but there is not any suggestion that such a requirement could exist if the lands had been situated otherwise than in a town or a county of a city. In the unreported decision of Kenny J....