Lowry v Williams

• Jurisdiction: Ireland
• Judgment Date: 18 December 1894
• Date: 18 December 1894
• Court: Court of Appeal (Ireland)

Lowry

and

Williams (1)

Appeal.

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1895.

Judgment — Mortgage — Merger.

By a mortgage deed the mortgagor covenanted to pay the mortgage debt on a day named, and (by a separate covenant) to pay interest at £60 per cent., so long as any principal money secured by the mortgage should remain unpaid after the day named, on the said principal sum, or on so much as should, for the time being, remain unpaid.

The mortgagee obtained judgment against the mortgagor for the principal and interest then due:—

Held (affirming the decision of Porter, M.R.), on the authority of Popple v. Sylvester (22 Ch. D. 98), that the security of the mortgage was not merged in the judgment, but that the mortgagee was entitled to interest at £60 per cent. subsequently to the date of the judgment.

Appeal from the order of Porter, M.R., dated the 25th July, 1894, refusing an application by William Williams that interest should be allowed to Thomas Joyce, a mortgagee, at the rate of £4 per cent, from the date when the mortgagee recovered judgment against Williams for the amount due on foot of the mortgage.

By mortgage dated the 2nd June, 1892, William Williams, in consideration of £65 advanced, covenanted to pay to Thomas Joyce the sum of £65 and £3 for costs on the 2nd December, 1892, with interest thereon at £60 per cent. per annum, and also all other sums which should from time to time become due from Williams to Joyce in respect of future advances with interest thereon at £60 per cent. And also that as long as principal money secured by the

mortgage should remain unpaid after the day on which such principal money should become due according to the terms of the mortgage, the mortgagor would pay to the lender interest thereon, or on so much thereof as should for the time being remain unpaid, at the said rate of £60 per cent. by monthly payments on the first day of each month; and the said William Williams demised to Joyce all his estate and interest in the lands of Grange, and county of Meath, derived under the will of his father, and all his other property, wheresoever situate, subject to redemption upon payment of the said sums of £65 and £3, and all interest due thereon, at the rate aforesaid, and all other sums payable under the mortgage, including interest at such rate as aforesaid.

Under the will of his father James L. Williams, the mortgagor was entitled to one-fourth of the residue, which included the lands of Grange, in the county of Meath, and also some house property in Dublin. An action for administration was brought by Joseph Lowry, the executor of the will of James L. Williams, against the children, who were then minors; and a receiver was appointed over the property. William Williams having failed to pay the mortgage debt on the day named for payment, a writ was issued by Joyce against him for the amount due on the 20th February, 1893. Judgment was marked on the 17th April, 1893, but to the writ of fi. fa. there was a return of nulla bona. On the 4th July, 1893, Joyce obtained an order in the action of Lowry v. Williams by which the receiver was directed to pay Joyce all moneys coming to William Williams until the full amount of the mortgage and all interest thereon was discharged. Under this order Joyce was obtaining payment of interest on the mortgage after the rate of £60 per cent. On the 24th July, 1894, the defendant Williams applied to the Master of the Rolls for an order that an account might be taken of all sums paid by the receiver to Joyce under the the order of the 4th July, 1893, and that in taking the account the Chief Clerk should be directed to calculate the interest on the principal sum secured by the judgment dated the 17th April, 1893, at the rate of £4 per cent, from the date of the judgment, or in the alternative that the receiver should make payments to Joyce on that basis.

The application was refused, and Williams appealed.

Law-Smith, for the appellant:—

The covenant here is merged in the judgment, and the fact of the debtor covenanting to pay £60 per cent. as long as any sum was due, will not keep it alive: In re European Central Railway Co. (1); Arbuthnot v. Bunsilall (2). Popple v. Sylvester (3) is distinguishable.

Ronan, Q.C., Wiley, Q.C., and Godley, for Joyce:—

This case is the same as Popple v. Sylvester (3); it is a proceeding in the nature of foreclosure, and that latter case was recognised in Ex parte Fewings (4). The covenant is to pay interest at £60 per cent. so long as anything remains due.

Law-Smith, for the appellant:—

Ronan, Q.C., Wiley, Q.C., and Godley, for Joyce:—

Walker, C.:—

The question in this appeal is the rate of interest which Mr. Joyce, a mortgagee of William Williams, is entitled to be paid by the receiver, on foot of a mortgage dated the 2nd June, 1892.

By an order of the Master of the Rolls dated the 4th of July, 1893, any moneys payable by the receiver to William Williams in respect of his one-fourth share of the residue under the will of James L. Williams were directed to be paid to Thomas Joyce in discharge of interest and principal due and to become due on foot of the mortgage. Mr. Joyce contends he is entitled to £60 per cent. interest, and so the Master of the Rolls held. The appellant contends that £4 per cent. only is payable.

The mortgage of the 2nd June, 1892, is made by William Williams to Thomas Joyce, and by it the mortgagor, in consideration of £65 and £3 paid and due, covenants that he will pay unto the lender the said sums of £65 and £3 on the 2nd December, 1892, with interest thereon in the meantime at the rate of £60 per cent. per annum; and also, on the day same should become payable, all future advances with the like rate of interest. The deed then proceeds—“And also as long as any principal money secured by this mortgage remains unpaid after the day on which such principal money becomes due according to the terms of this mortgage, or

any promissory note, bill of exchange, or agreement of the mortgagor or otherwise, will...