Irwin v McCabe


Supreme Court.

(1926. No. 912.)
Irwin v. M'Cabe.

Land Registry - Discharge of equities - Omissions from Folio - Provision in registered deed omitted Deed of charge not registered - Rights of the parties - Local Registration of Title (Ir.) Act, 1891 (54 & 55 Vict. c. 66), sect. 34.

FitzGibbon J.:

This is an appeal by the defendant, James William M'Cabe, from an order of the High Court, dated 16th March, 1926, made upon a mortgagee's summons, by which it was declared, inter alia, that the sum secured by an indenture of charge, dated October 4th, 1917, in favour of the plaintiff was well charged upon the interest of the appellant in the lands of Bodingtown, in the County of Meath; and it was ordered that the said lands should be sold to raise the amount of the charge, with interest and costs.

The facts are short, and may be sufficiently stated as follows: By her will, dated 28th February, 1909, Mary Anne M'Cabe, who was the owner of the farm of Bodingtown, devised it to her husband, the defendant, Thomas J. M'Cabe, for his life, "and on his death said farm to go to my son, James William M'Cabe; but I give my said husband, Thomas M'Cabe, power to raise the sum of seven hundred pounds for the purpose of stocking said farm, and for the maintenance and education of my said son." She died on the 13th of March, 1909, within a fortnight of the date of her will, which was proved by the defendant, Thomas J. M'Cabe, as sole executor, on May 28th, 1909; and on the 10th of July, 1912, the defendant, Thomas J. M'Cabe, who had purchased the holding under the Land Purchase Code, was registered as owner in fee-simple of the lands of Bodingtown, subject to the Land Purchase annuity of 92 13s., and also subject to equities. The note on the folio states that: "These lands are registered subject to the rights or equities (if any) arising from the interest vested in Thomas J. M'Cabe by fiat of the said Commission, dated 23rd of November, 1911, being deemed to be a graft on his previous interest in the land, or arising in any other manner from the existence of such previous interest." The "previous interest in the land" of Thomas J. M'Cabe was a tenancy for life under the will of his wife, and such as he might have as guardian of his then infant son, the defendant, James William M'Cabe.

It appears that Thomas J. M'Cabe got into difficulties. In 1914 proceedings were instituted, apparently by creditors, before Mr. Justice Barton, in the then Chancery Division of the High Court of Justice in Ireland against the present defendants, of whom James William M'Cabe was then an infant, who appeared by his guardian ad litem. An order was made in that suit on the 9th of March, 1917, that portion of the lands comprised in the folio should be sold for 700; that...

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