Irwin v Deasy,  IESC 15 (2011)
THE SUPREME COURT
RECORD 2006 No. 110
LIAM J. IRWIN
THOMAS DEASY (AND BY ORDER) CARMEL DEASY
Judgment of Mr Justice Finnegan delivered on the 13th day of May 2011
The appellant at the time of the issue of these proceedings was the Collector General and an officer of the Revenue Commissioners suing on behalf of the Minister for Finance for the benefit of the central fund. He was succeeded in that office in April 2005 by Gerard Harrahill. By virtue of section 964 of the Taxes Consolidation Act 1997 (as amended) Mr Harrahill is empowered to continue the proceedings and this appeal in the appellant’s name.
The respondents are the registered owners as joint tenants of the lands comprised Folio 8249 of the Register County Cork which comprises 19.513 hectares: the lands do not comprise a family home within the meaning of the Family Home Protection Act 1976.
In the Special Summons the appellant sought the following reliefs:-
A declaration that under and by virtue of the registration against the lands of three judgment mortgages the sums due on foot of three judgments stand well charged on Mr Deasy’s interest in the lands.
An order for payment of the sums due on foot of the three judgments.
In default of payment of the sums due on foot of the three judgments an order for sale in lieu of partition of the lands comprised in the said Folio.
By order made the 8th day of March 2004 the High Court (Finlay Geoghegan J.) made the well charging order sought and joined Carmel Deasy as co-defendant to the proceedings. The High Court declined to make an order for sale without Carmel Deasy being joined in the proceedings. See Irwin v Deasy  4 I.R. 1.
Carmel Deasy was duly joined as a defendant and further affidavits were filed on behalf of the appellant and on behalf of Mrs Deasy. No affidavits were filed in the proceedings on behalf of Mr Deasy who took no active part in the proceedings. The appellant renewed his application for an order for sale which application came on for hearing before the High Court (Laffoy J.) on the 15th and 16th December 2005. In a written judgment (2006) IEHC 25 delivered on the 31st January 2006 Laffoy J. noted as follows:-
“I think it is important to emphasise that the only relief sought by the plaintiff directed to the realisation of the secured monies is a sale in lieu of partition. The plaintiff has not sought a partition of the lands nor has he sought an order for sale of the interest of the first defendant. The endorsement of claim on the special summons does not disclose the jurisdiction being invoked by the plaintiff in seeking an order for sale in lieu of partition, whether it is the court’s inherent jurisdiction or statutory jurisdiction.”
Thus the sole issue before the court was whether in the circumstances of this case the court had jurisdiction to order a sale in lieu of partition of the lands comprised in Folio 8249 of the Register County Clare. Laffoy J. held that the court did not have jurisdiction to order a sale in lieu of partition of registered land at the suit of a judgment mortgagee whose judgment affected the interest of a co-owner. Against that judgment the appellant appeals.
Judgment of the High Court (Finlay Geoghegan J.) 1st March 2004
The learned trial judge made a number of findings of law as follows:-
The jurisdiction of the courts to make an order for sale in lieu of partition continues notwithstanding the repeal of the Partition Act 1542 by the Statute Law Revision (Pre-Union Irish Statutes) Act 1962: F.F. v C.F.  I.L.R.M. 1.
The jurisdiction to make an order for sale in lieu of partition is that formerly exercised by the Courts of Chancery and following the Supreme Court of Judicature (Ireland) Act 1877 by all courts.
An order for sale in lieu of partition could only be made at the suit of a co-owner or someone claiming in right of his title e.g. a mortgagee of the co-owners.
An order for sale in lieu of partition can be made at the suit of a judgment mortgagee of unregistered land having regard to the provisions of the Judgment Mortgage (Ireland) Act 1850 section 7 which provides that registration of a judgment mortgage shall have the effect of a mortgage.
Registration of a judgment mortgage against registered land creates a charge only and does not operate as a mortgage and does not effect a transfer of the title of the judgment mortgagor. The remedies available to the judgment mortgagee are those conferred by the Registration of Title Act 1964 section 71 (4) –
“such rights and remedies for the enforcement of the charge as may be conferred on him by order of the court.”
An order for partition or sale in lieu of partition should not be made pursuant to the registration of Title Act 1964 section 71(4) where a judgment mortgage is registered against the interest of one co-owner in the absence of the other co-owner.
Liberty was given to join Carmel Deasy as defendant.
Judgment of the High Court (Laffoy J.) 31st January 2006
In her judgment the learned trial judge set out the issue before her as follows:-
“It is whether the court has jurisdiction to make an order for sale in lieu of partition where –
(a) the applicant is a judgment creditor;
(b) the judgment mortgage affects the interest of one only of two joint tenants of the land and
(c) the land is freehold registered land.
The learned trial judge carried out a detailed analysis of the law as it developed concerning the jurisdiction to order partition and sale in lieu of partition. The learned trial judge concluded as follows:-
“For the following reasons, I consider that no such jurisdiction exists:
(i) even though the court has equitable jurisdiction to make an order to partition land, it cannot do so at the suit of a judgment creditor in the position of the plaintiff, who merely has a judgment mortgage registered against the interest of one co-owner in registered land, whose interest is insufficient to give him locus standi.
(ii) as a person in the position of the plaintiff does not have sufficient interest to maintain a suit for partition, having regard to the terms of sections 3 and 4 of the Act of 1868, he cannot pursue the statutory remedy of a sale in lieu of partition. The existence of jurisdiction in this court to make an order for sale in lieu of partition of registered land on the application of a judgment creditor obviously was not questioned in First National Building Society v Ring and the case proceeded on the assumption that such jurisdiction existed. Similarly in Farrell v Donnelly  1 I.R. 50, a case cited by counsel for the second defendant, the Court of Appeal proceeded on the assumption that there was jurisdiction under the Act of 1868 to order a sale in lieu of partition at the suit of a judgment mortgagee of the share of several co-owners of registered land, the only issue in that case being whether such an order could be made without the consent of the Land Commission, the registered holding having been bought out under the land Purchase Acts. In their judgments, the Lord Chancellor and Holmes Cherry and LJJ. focussed on the narrow issue of the necessity for the consent of the Land Commission, which was the question raised on the case stated which was before the court.
(iii) the court never had, and does not now have, jurisdiction to order a sale in lieu of partition independently of the statutory jurisdiction conferred by the Act of 1868. Apart from whatever power the court is given under section 71(4), there is no doubt but that the court has no jurisdiction whatsoever to order a sale in lieu of partition at the suit of a person in the position of the plaintiff, a judgment creditor whose judgment mortgage affects the interest of one co-owner of registered land. When the Act of 1964 was enacted the judgment mortgage as a process of execution had been on the statute book for over one hundred years and the jurisprudence of the court in providing a remedy to the judgment creditor had developed over that period and by then was well settled. It must be implicit in section 71(4) that the remedy which the court may confer on a judgment...
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