James Bruce and Samuel Bruce v Mary E. Brophy

• Jurisdiction: Ireland
• Judge: Barton, J.
• Judgment Date: 08 May 1906
• Court: Court of Appeal (Ireland)
• Docket Number: (1905. No. 614.)
• Date: 08 May 1906

James Bruce and Samuel Bruce

and

Mary E. Brophy.

Barton, J.

Appeal.

(1905. No. 614.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1906.

Practice — Mortgage — Foreclosure without sale — Special circumstances — Bonus

Held, by Barton, J., and by the Court of Appeal, that these circumstances were not sufficient to justify the Court in departing from its settled practice to order a sale and not foreclosure.

Motion for judgment on the default of the defendant in entering an appearance and delivering a defence in a mortgagee's suit.

By a Landed Estates Court conveyance, dated the 13th day of March, 1868, the lands of Alexanderade and Belis, in the county of Meath, containing 56a. 1r. 9p., were conveyed to one William Brophy, in fee-simple, subject to the sum of £1400 advanced by William Robert Bruce to the said William Brophy, to enable him to purchase the said lands; and by an indenture of even date with the said conveyance, and made between the said William Brophy of the one part, and the said William Robert Bruce of the other part, the said lands were granted by the said William Brophy to the said William Robert Bruce, by way of mortgage, to secure the repayment of the said sum of £1400, with interest thereon at 6 per cent, per annum.

The said William Brophy died intestate on the 7th day of October, 1880, leaving the defendant, his daughter and only child and heiress-at-law. The said William Robert Bruce died on the 25th day of June, 1902, having by his will, dated the 9th day of August, 1898, devised and bequeathed all his property, real and personal, to the plaintiffs, on the trusts therein mentioned, and appointed the said plaintiffs executors of his will, probate of which was duly granted to the plaintiffs.

By their statement of claim, filed in lieu of delivery, the plaintiffs alleged that the whole of the said sum of £1400, together with £207 5s. 1d. for interest down to the 13th September, 1905, was due by the defendant on foot of the mortgage; that the rents of the lands (which were collected by a receiver appointed under deed by the said William Robert Bruce), in consequence of the reduction thereof under the Irish Land Acts, had become insufficient to pay and keep down the interest accruing on the said mortgage debt, and that the defendant had failed to pay the said mortgage debt, or to release the equity of redemption of the lands, though requested to do so.

The plaintiffs claimed that the said sum of £1400, with £207 5s. 1d. for interest, might be ascertained as due and owing to the plaintiffs on foot of the said mortgage, together with further interest until payment, or that an account might be taken of what was due for principal and interest on foot of the mortgage, and that, in default of payment to the plaintiffs of the sum so ascertained to be due, together with their costs of suit, by a day to be named by the Court, “the defendant and all persons claiming under her might be absolutely foreclosed of all equity of redemption in or to the said mortgaged premises.”

The defendant did not appear, and the averments in the statement of claim were verified by affidavit.

The Chancery Division has jurisdiction to decree foreclosure and not a sale in a mortgagee's suit, but will only exercise such jurisdiction under exceptional circumstances.

The plaintiffs, in an undefended mortgagees' suit, sought a decree that, in default of payment...