Irwin v Deasy

• Jurisdiction: Ireland
• Judge: Mr Justice Finnegan
• Judgment Date: 13 May 2011
• Neutral Citation: [2011] IESC 15
• Court: Supreme Court
• Docket Number: [2003 No. 151 SP], [S.C. No. 110 of 2006]
• Date: 13 May 2011

[2011] IESC 15

THE SUPREME COURT

Macken J.

Finnegan J.

O'Donnell J.

RECORD No. 110/2006

Irwin v Deasy

REVENUE

BETWEEN

LIAM J. IRWIN

PLAINTIFF/APPELLANT

and

THOMAS DEASY (AND BY ORDER) CARMEL DEASY

DEFENDANTS/RESPONDENTS

TAXES CONSOLIDATION ACT 1997 S964

IRWIN v DEASY 2004 2 IR 1

IRWIN v DEASY 2006 2 ILRM 226 2006/30/6354 2006 IEHC 25

PARTITION ACT 1542

STATUTE LAW REVISION (PRE-UNION IRISH STATUTES) ACT 1962

F (F) v F (C) 1987 ILRM 1

SUPREME COURT OF JUDICATURE (IRELAND) ACT 1877

JUDGMENT MORTGAGE (IRELAND) ACT 1850 S7

REGISTRATION OF TITLE ACT 1964 S71(4)

PARTITION ACT 1868 S3

PARTITION ACT 1868 S4

LAND & CONVEYANCING LAW REFORM ACT 2009 S31

DAVENPORT v KING 1883 49 LT (NS) 92

LOCAL REGISTRATION OF TITLE (IRELAND) ACT 1891 S21(2)

FARRELL v DONNELLY & ORS 1913 1 IR 50

REGISTRATION OF TITLE ACT 1964 S3

PARTITION ACT 1876 S7

ASTON v MEREDITH 1871 LR 11 EQ 213

TRINITY COLLEGE v KENNY UNREP LAFFOY 22.1.2010 2010/44/11037 2010 IEHC 20

REGISTRATION OF TITLE ACT 1964 S74(4)

JOINT TENANTS ACT 1542

REAL PROPERTY LIMITATION ACT 1833 S36

SUPREME COURT OF JUDICATURE (IRELAND) ACT 1877 S21

EVANS v BAGSHAW 1869 8 LR EQ 469

TAYLOR v GRANGE 1880 15 CH D 165

EVANS v BAGSHAW 1870 5 CH APP 340

FALL v ELKINS 1861 9 WR 861

HAWKESWORTH, IN RE LR IR 1 EQ 179

MILDMAY v QUICKE 1875 20 EQ 538

AGAR v FAIRFAX 1810 17 VES 533

WHITE & TUDORS LEADING CASES IN EQUITY 1928 419

MAYFAIR PROPERTY CO v JOHNSTON 1894 1 CH 513

STORY COMMENTARIES ON EQUITY JURISPRUDENCE 1920

LYALL LAND LAW IN IRELAND 3ED 2010 424

TURNER v MORGAN 1803 8 VES JUN 143

HUDDERSFIELD v JACOMB 1874 WN 80

ROEBUCK v CHADEBET 1869 8 LR EQ 127

DRINKWATER v RATCLIFFE 1875 LR 20 EQ 53

GILBERT v SMITH 1878 8 CH D 548

PENDERTON v BARNES 6 CH 693

SAXTON v BARTLEY 1879 48 LJ CH 519

LANGDALE, IN RE 1871 IR 5 EQ 572

FIRST NATIONAL BUILDING SOCIETY v RING 1992 IR 375

GIBBS v HAYDON 47 LT 184

SINCLAIR v JAMES 1894 3 CH 554

REGISTRATION OF TITLE (IRELAND) 1891 S21

REGISTRATION OF TITLE ACT 1964 S71

JUDGE MAHON & ORS v LAWLOR UNREP SUPREME 25.11.2010 2010/33/8157 2010 IESC 58

TEAL v WATTS LR 11 EQ 213

HOLLAND v HOLLAND 1872 LR 13 EQ 406

PARTITION ACT 1876 S7

REGISTRATION OF TITLE ACT 1964 S21(2)

REGISTRATION OF TITLE ACT 1964 S62(6)

REGISTRATION OF TITLE ACT 1964 PART III

REGISTRATION OF TITLE ACT 1964 S23

REGISTRATION OF TITLE ACT 1964 S24

FITZGERALD LAND REGISTRY PRACTICE 2ED 1995 PARA 1.2

COMPULSORY REGISTRATION OF OWNERSHIP (CARLOW, LAOIGHIS AND MEATH) ORDER SI 87/1969

REGISTRATION OF TITLE ACT 1964 (COMPULSORY REGISTRATION OF OWNERSHIP)(CORK & DUBLIN) ORDER 2010 SI 516/2010

REAL PROPERTY

Judgment mortgage

Registered land - Joint tenancy - Enforcement - Creditor seeking order for sale in lieu of partition - Judgment mortgage against one joint tenant - Whether jurisdiction to make such an order - Act for Joint Tenants 1542 (33 Hen VIII, c 10) - Partition Act 1868 (32 & 33 Vict, c 40), ss 3 & 4 - Local Registration of Title (Ireland) Act 1891 (54 & 55 Vict, c 66), s 21 - Registration of Title Act 1964 (No 16), s 71 - Plaintiff's appeal dismissed (110/2006 - SC - 15/5/2011) [2011] IESC 15

Irwin v Deasy

Facts The plaintiff on behalf of the Revenue had brought a mortgage action suit against the first defendant (and by order the second defendant was joined to the action). The lands did not comprise a family home within the meaning of the Family Home Protection Act, 1976. The first defendant was a co-owner of lands and a judgment mortgage had been registered against his interest over the lands. In the High Court an attempt was made to get an order partitioning the land between the judgment debtor (the first defendant) and the other co-owner (the second defendant) or a sale in lieu of partition and a division of the proceeds of sale. Laffoy J. in the High Court held that the Court did not have jurisdiction to grant the application. The plaintiff appealed on the basis that the High Court did have the jurisdiction in question to grant the necessary relief. It was submitted that section 71(4) of the Registration of Title Act 1964 empowered the court to make orders for the purpose of enforcing the charge created by the registration of a judgment mortgage similar to those the courts made for the purpose of enforcing a judgment mortgage registered in the Registry of Deeds against unregistered land. The making of a well charging order had the effect of making a judgment mortgagee a person interested for the purposes of the Partition Acts. On behalf of the first defendant it was contended that the court had no inherent jurisdiction to make an order for sale in lieu of partition, the only jurisdiction being the statutory jurisdiction. The effect of registering a judgment mortgage on registered land differed from that of a judgment mortgage registered on unregistered land in that the former created a charge only and did not effect a transfer of title to the judgment mortgagee. Accordingly the judgment mortgagee did not enjoy sufficient interest to obtain an order for partition or an order for sale in lieu of partition.

Held by the Supreme Court in refusing the appeal (Finnegan J delivering judgment). Under the Local Registration of Title (Ireland) Act 1891 section 21, registration of a judgment mortgage operated as a mortgage. In those circumstances the judgment mortgagee was a person interested. However under the Registration of Title Act 1964 section 71 a judgment mortgage operates only as a charge and not as a mortgage. No interest of the judgment mortgagor passed to the judgment mortgagee by virtue of the registration of the judgment mortgage, the effect of registration being to charge the interest of the judgment mortgagor. Section 71(4) of the Registration of Title Act, 1964 did not confer upon the court power to make an order for partition or an order for sale in lieu of partition at the suit of a judgment mortgagee of registered land. The court was satisfied that it was the legislative intention to differentiate between the positions of a judgment mortgage of registered land and a judgment mortgage of unregistered land. Had it been the intention of the legislature to confer that power upon the court it would have done so in clear terms. The trial judge was correct in holding that she did not have jurisdiction under sections 3 and 4 of the Partition Act 1868 to make an order for sale in lieu of partition at the suit of the appellant, a judgment mortgagee of registered land.

Reporter: R.F.

1 Judgment of Mr Justice Finnegan delivered on the 13th day of May 2011

2 Judgment delivered by Finnegan J. [nem diss]

3 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.

4 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.

5 In the Special Summons the appellant sought the following reliefs:-

6 1. 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.

7 2. An order for payment of the sums due on foot of the three judgments.

8 3. 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.

9 By order made the 8 ^th 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 [2004] 4 I.R. 1.

10 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 15 ^th and 16 ^th December 2005. In a written judgment (2006) IEHC 25 delivered on the 31 ^st 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."

11 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.) 1 ^st March 2004

12 The learned trial judge made a...