Irwin v Deasy

JurisdictionIreland
JudgeMs. Justice Finlay Geoghegan
Judgment Date01 March 2004
Neutral Citation[2004] IEHC 104
CourtHigh Court
Docket Number[2003 No.
Date01 March 2004

[2004] IEHC 104

THE HIGH COURT

[2003 No. 151 Sp.]
IRWIN v. DEASY

BETWEEN

PLAINTIFF
LIAM J. IRWIN

AND

THOMAS DEASY
DEFENDANT

Citations:

FAMILY HOME PROTECTION ACT 1976

REGISTRATION OF TITLE ACT 1964

REGISTRATION OF TITLE ACT 1964 S69

REGISTRATION OF TITLE ACT 1964 S62(6)

REGISTRATION OF TITLE ACT 1964 S71(4)

JUDGMENT MORTGAGE (IRL) ACT 1850 S7

WYLIE IRISH LAND LAW 3ED

PARTITION ACT 1868 S3

PARTITION ACT 1868 S4

O'D V O'D UNREP MURPHY 18.11.1983 1984/8/2595

JOINT TENANTS ACT 1542

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

LYALL LAND LAW IN IRELAND 2ED 2000 446

F V F 1987 ILRM 1

STATUTE LAW REVISION (PRE-UNION IRISH STATUTES) ACT 1962 S2(1)

WHITE & TUDOR LEADING CASES IN EQUITY 7ED 1897 199

DAVENPORT V KING 1883 49 LT (NS) 92

FIRST NATIONAL BUILDING SOCIETY V RING 1992 1 IR 375

PARTITION ACT 1868 S9

1

Ms. Justice Finlay Geoghegandated the 1st day of March 2004.

2

The plaintiff is the Collector General of the Revenue Commissioners. He has obtained three judgments against the defendant, one in the High Court and two in the Cork Circuit Court in respect of sums due by the defendant to the Revenue Commissioners.

3

The defendant and his wife Carmel Deasy are the joint owners of the lands comprised in Folio 8249 Co. Cork. The land therein comprises 19.5 hectares and it is averred by the plaintiff that it does not contain a family home within the meaning of the Family Home Protection Act,197627 .. The said folio also contains an entry relating to a right of residence of one Hannah Deasy and it is averred by the plaintiff that the said Hannah Deasy died on the 27 th October, 2000.

4

Each of the three judgments of the plaintiff against the defendant have been converted into judgment mortgages and the said judgment mortgages have been registered on Folio 8249 Co. Cork.

5

The plaintiff in these proceedings essentially seeks:

6

1. A declaration that each of the said judgments stands well charged on the defendant's interest in the lands and premises contained in Folio 8249 Co. Cork.

7

2. An order for payment of the sums alleged due on the said judgments together with continuing interest.

8

3. In default of payment, an order for the sale in lieu of partition of the aforesaid lands and premises and for the payment to the plaintiff out of the proceeds thereof of the sum found to be due and owing to the plaintiff following all necessary accounts and enquiries.

9

The proceedings were duly served by personal service on the defendant on the 10 th April, 2003. An appearance was entered on behalf of the defendant and his solicitor appeared but did not make any submission on his behalf before me. The defendant's spouse and co-owner Carmel Deasy has been served with notice of the proceedings. She has notappeared.

10

Notwithstanding the lack of opposition, the plaintiff must satisfy the court on the pleadings, affidavits and exhibits that it has jurisdiction to grant the reliefs sought.

11

When the matter came up for hearing before me in the Monday Special Summons List I was satisfied that the plaintiff was entitled to the well charging and payment orders sought. However, I sought submissions from counsel for the plaintiff as to the jurisdiction of this court to make an order for sale in lieu of partition of registered lands at the request of a judgment mortgagee and further, if the court has such jurisdiction, its ability to make such an order in the absence of Camel Deasy, the co-owner of Folio 8249, as a party to the proceedings.

12

Counsel for the plaintiff has made helpful submissions both in writing and orally. I have had an opportunity of considering these, the authorities referred to, and certain other older texts, and have reached the following conclusions.

13

The registration of the judgment mortgage affidavit by the plaintiff on Folio 8249 Co. Cork operates to charge the interest of the judgment debtor (the defendant in this case) therein. In accordance with s. 71 of the Registration of Title Act, 1964the plaintiff has

"... such rights and remedies for the enforcement of the charge as may be conferred on him by order of the court."

14

A charge so registered is a burden on the lands comprised in the said folio in accordance with s. 69 of the Act of 1964. Accordingly, it appears that the combined effects of s. 69 and s. 71 of the Act of 1964 mean that following the registration of each of the judgment mortgage affidavits on the folio there is registered as a burden against the lands comprised in the folio a charge against the defendants interest inthesaid lands to secure the judgment to which the judgment mortgage affidavit refers. The plaintiff as the judgment creditor only has the rights conferred on him by statute and cannot be considered to have any right to the ownership or possession of the lands comprised in the folio. The only rights conferred by statute are those already referred to in s. 71 of the Act of 1964, namely "such rights and remedies for the enforcement of the charge as may be conferred on him by order of the court". A judgment creditor who has registered a judgment mortgage affidavit against registered lands has not been granted by the Act of 1964 any rights analogous to those rights conferred on the registered owner of a charge created by the owner of the registered land. An owner of a charge created by the owner has, pursuant to s. 62 (6) of the Act of 1964, "all the rights and powers of a mortgagee under a mortgage by deed, including the power to sell the estate or interest which is subject to the charge."

15

Section 71 of the Act of 1964 purports in its express wording to give the court a wide discretion as to the orders it may make for the purpose of enforcing the charge created by the registration of the judgment mortgage affidavit. The section must be given an interpretation consistent with the Constitution. This necessitates avoiding a construction which would permit either an unjust attack on the property rights of persons other than the judgment debtor and also only interfering with the property rights of the judgment debtor to the extent necessary to permit the judgment creditor to realise the charge created by the registration of the judgment mortgage affidavit.

16

To give such a constitutional construction it appears to me that the courts should have regard to the type of orders it traditionally makes pursuant to its equitable jurisdiction for the purpose of enforcing a charge created by the registration of ajudgment mortgage against unregistered lands. The probable intention of the Oireachtas in enacting s. 71 (4) of the Act of 1964 was to give the court a jurisdiction to make orders for the purpose of enforcing the charge created by the registration of a judgment mortgage on registered land similar to those the courts make for the purpose of enforcing a judgment mortgage registered in the Registry of Deeds against unregistered land.

17

The position of a judgment mortgagee of unregistered land under s. 7 of the Judgment Mortgage (Ireland) Act, 1850 is that the registration of the affidavit of judgment in the Registry of Deeds operates

"... to transfer to and vest in the creditor ... all the lands, tenements, and hereditaments mentioned therein, for all the estate and interest of which the debtor mentioned in such affidavit shall at the time of such registration be seised or possessed at law or in equity, or might at such time create by virtue of any disposing power which he might then, without the assent of any other person, exercise for his own benefit ..."

18

subject to redemption on payment of the money owing on the judgment. In Wylie, Irish Land Law, 3rd Ed., (Dublin, 2000) the status and effect of such a mortgage is described as follows at para. 13.179

"Such a mortgage is subject to most of the principles governing mortgages in general. The usual method of enforcement is to bring an action for a declaration that the sum due is well charged, and for asaleif the amount is not paid within a specified period (3 months). Discharge does not require execution of a re-conveyance of the land and can be effected simply by entering up a memorandum ofsatisfaction."

19

Where the judgment debtor is the sole owner of registered land, the court has exercised the discretion conferred on it by s. 71 of the Act of 1964 to make orders declaring the sum due to be well charged on the lands in the folio and, in default of payment within a specified period, an order for the sale of the lands.

20

The defendant and Carmel Deasy being registered as co-owners of the lands comprised in Folio 8249 Co. Cork are deemed to be joint tenants pursuant to s. 91 (2) of the Act of 1964. There is no entry in the register to the effect that they are tenants in common. Accordingly it appears appropriate to consider the orders which a court might make where a judgment mortgage is registered against unregistered lands owned by persons as joint tenants. It is well established that the registration of a judgment mortgage seeking to charge one joint tenant's interest in lands operates to sever the joint tenancy and thereupon the co-owners hold as tenants in common and a mortgage of the estate or interest in the land held by the judgment debtor is created in favour of the judgment creditor. Thereafter the judgment creditor normally brings an action for a declaration that the sum due is well charged on the judgment debtors interest in the lands and for an...

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