Irwin v McCabe

CourtSupreme Court (Irish Free State)
Judgment Date01 January 1927
Date01 January 1927
Docket Number(1926. No. 912.)
Irwin v. M'Cabe.
(1926. No. 912.)

Supreme Court.

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.

The owner of a certain farm devised it to her husband, T. J. M'C., the defendant, for life, and after his death to her son, J.W.M'C., the other defendant, and she gave her husband power to raise the sum of £700 for the purpose of stocking the farm and for the maintenance and education of her son. After her death the defendant, T.J.M'C., who had purchased the holding under the Land Purchase Acts, was, on the 10th July, 1912, registered as owner in fee-simple subject to equities. In 1914 proceedings were instituted in the Chancery Division against the defendants the defendant J.W.M'C. being then an infant), and an order was made on 9th March, 1914, that portion of the lands should be sold for £700; that, subject to the consent of the Land Commission, the lands should be divided; that the defendant, T.J.M'C., should execute a deed charging his life estate and interest in the lands (other than the portion to be sold) with an annuity of £30 per annum during his life in favour of his son, the minor defendant, and that he should release the said power of charging the lands conferred upon him by the will of his wife. A deed was made in pursuance of this order, creating the annuity of £30 and releasing the said power of charging the lands conferred upon the defendant, T.J.M'C., and this deed was registered on July 23rd, 1914. In 1917 the defendant, T.J.M'C., obtained a loan of £250 from the plaintiff, which was secured by a charge, dated 4th October, 1917, and on the 9th October, 1917, the plaintiff was registered as owner of this charge. Plaintiff's solicitor had called upon the defendant, T.J.M'C., to have the equities discharged, and the application was pending on the 2nd October, but the equities were not discharged until the 12th October. On that date a note was put on the register stating that the note as to rights or equities was cancelled, and that T.J.M'C. was registered as limited owner of the lands which had been ascertained to be subject to (1) the Land Purchase annuity; (2) the power vested in T.J.M'C. to raise £700; and (3) the annuity of £30 registered on the 23rd July, 1914. In this note the registering authorities ignored the fact that the power vested in T.J.M'C. to raise £700 had been released by the deed which was registered on the 23rd July, 1914; and the note also omitted as a burden the plaintiff's charge which had been registered three days previously. The interest on plaintiff's charge not having been paid, he took proceedings before Meredith J., who made an order declaring the sum secured by the plaintiff's charge and the interest thereon well charged on the interests of both the defendants in the lands, and directing an account and a sale of the lands. From this decision the defendant, J.W.M'C., appealed, he, as remainderman, being entitled upon the determination of the life estate of his father, T.J.M'C., to the lands in fee, subject only to the Land Purchase annuity and the annuity of £30 during his father's life, which was created in his own favour when he was a minor.

Held, that the order of Meredith J. must be reversed, as the plaintiff was not entitled, as against the defendant, J.W.M'C., to the relief giver, by that order.

Appeal by the defendant, James William M'Cabe, from an order of Meredith J., dated the 16th day of March, 1926.

The plaintiff was registered as owner of a charge on the lands, the subject of Folio No. 3922 of the Register of Freeholders, County Meath, and the order of Meredith J. declared the sum secured by the said charge, the interest...

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