Kidd v O'Neill

• Jurisdiction: Ireland
• Judgment Date: 29 July 1931
• Date: 29 July 1931
• Docket Number: (1928. No. 1307.)
• Court: High Court (Irish Free State)

Kidd v. O'Neill

MARY KIDD

Plaintiff

and

JOHN O'NEILL

Defendant.

(1928. No. 1307.)

Vendor and purchaser - Registered lands - Mortgagee's suit - Sale by order of the Court Mortgagee paid out of the purchase money - Other incumbrances remaining on the register - Purchaser registered as full owner - Order cancelling remaining incumbrances - Power of the Court to grant - Local Registration of Title (Ir.) Act, 1891 (54 & 55 Vict. c. 66), sect. 36, sub-sect. 1 - Rules of the Supreme Court (Ir.), 1905,Or. XVI, r. 38; Or. XXX, rr. 7, 8; Or, LI, rr. 1, 4; Or. LV, r. 48.

Certain lands, which were registered under the Local Registration of Title (Ir.) Act, 1891, were sold pursuant to an order of the Court in a mortgagee's suit, and the purchase money was lodged in Court. The amount being only sufficient to satisfy the claim of the plaintiff, it was paid to her, leaving several other charges undischarged on the register. A transfer of the lands was then made to the purchaser by the plaintiff as first mortgagee and by the defendant as the personal representative of the registered owner, and the purchaser was registered as full owner. Desirous of being registered freed and discharged from the charges still on the register, the purchaser applied to the Court for an order directing the Registrar of the Land Registry to register him so freed and discharged.

Held that the Court had power to declare that the purchaser held the lands freed and discharged from all the charges subsequent to that of the plaintiff, and to order the cancellation of those charges on the register.

Whenever such an order is required it will be the duty of the party having carriage to apply to the Court for an order freeing the land sold in the suit from the specified incumbrances for the purpose of perfecting the title of the purchaser, and the costs of the application will ordinarily be treated as part of the costs of the sale.

Ex Parte Application on behalf of John Byrnes (otherwise Byrne) for an order directing the Registrar of the Land Registry to register him as full owner on Folio No. 665, County of Dublin, discharged from all charges registered on the said Folio prior to the 31st May, 1929. The lands comprised in the said Folio had been sold by order of the Court in this action, and were purchased by the said John Byrnes.

The said lands had been purchased under the Irish Land Act, 1903, by John Traynor, and he was registered subject to equities on the 21st October, 1907. The note as to equities on the Folio was cancelled on the 19th December, 1928. The lands were subsequently acquired by William O'Neill, who was registered as owner on the 23rd October, 1908. There were eight charges on the Folio affecting his ownership. These are referred to below. The order for sale in this suit was made on the 23rd April, 1928, against John O'Neill, as the personal representative of the said William O'Neill (the mortgagor), who had died on the 15th April, 1915.

The application was grounded on the affidavit of Joseph E. M'Dermott, solicitor, in which he stated that in February, 1929, the said John Byrnes, in consideration of £1,100 paid into Court to the credit of this suit, purchased all that part of the lands of Deanstown Barony of Nethercross, and County of Dublin, being the lands set forth in Folio No. 665, County Dublin, in the Registry of Freeholders, Land Registry, Irish Free State; and on the 31st of May, 1929, the said John Byrnes was duly registered as full owner of the lands. As appeared from the said Folio, eight charges were set out thereon. The Examiner's certificate was filed on the 10th of July, 1929, wherein the debts and incumbrances in respect of the said lands were set out in the schedule thereto in their respective priorities, and the said schedule included all the charges set forth on the said Folio, and in respect thereto the Examiner found as follows:—"As to charge No. 1: the said charge was by order made in this suit, dated the 23rd April, 1928, declared to be well charged on the interest of defendant in the said lands. The Examiner found there was due to the plaintiff the sum of £300 principal and £50 18s. balance of interest to the date of his certificate, together with plaintiff's costs of the suit as taxed. As to charge No. 2: that no claim had been made in respect of said charge. As to charge No. 3: that there was due the sum of £186 14...