Irwin v McCabe

CourtSupreme Court (Irish Free State)
Docket Number(1926. No. 912.)
Date01 January 1927

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.

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 thereon, together with the costs thereinafter awarded, well charged on the interests of the defendants in the lands and premises set forth in the schedule thereto, subject nevertheless to the limitation created by the Irish Land Act, 1903, sect. 54, sub-sect. 3, as to the amount for which the said charge might stand. The lands set out in the said schedule were "part of the lands of Bodington, containing 73 acres and 33 perches or thereabouts, statute measure, situate in the Electoral Division of Stamullin, Barony of Duleek Upper, and County of Meath, being the lands registered on Folio No. 3922 of the Register of Freeholders for said County." The order directed that an account be taken of what was due to the plaintiff on foot of the said charge, and that the said lands and premises be sold.

The grounds of the appeal were that the said charge purported to be made under a power vested in the other defendant, Thomas J. M'Cabe, which (during the minority of the defendant, James William M'Cabe) the said Thomas J. M'Cabe was ordered to surrender by an order of the High Court of Justice in Ireland, made by Mr. Justice Barton, dated the 9th day of March, 1914, in an action in which Gerald Tench was plaintiff and the said Thomas J. M'Cabe and the said James William M'Cabe were defendants, and by order to proceed, Thomas Wade, plaintiff, and same defendants; which power was duly surrendered by deed dated the 3rd day of July, 1914, under the hand and seal of the defendant, Thomas J. M'Cabe.

The facts are summarised in the head note, and are fully stated in the judgment of FitzGibbon J.

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...

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