M'Ilroy v Edgar

JurisdictionIreland
Judgment Date09 November 1881
Date09 November 1881
CourtChancery Division (Ireland)

Ld. Chan.

M'ILROY
and

EDGAR.

Eyre v. M'DowellENR 9 H. L. C. 619.

Scott v. Scott 9 Ir. Ch. R. 319.

Caldwell v. FellowesELR L. R. 9 Eq. 410.

Judgment mortgage — Affidavit of ownership — Misdescription of townland and parish — Severance of joint tenancy — 13 & 14 Vict. c. 29.

'OL. VII.] CHANCERY DIVISION. 521 The deed of 1872 appears to have been prepared on this view ; V. 'C. for if the transaction there recited really took place, the interest 1881. due having been actually paid to the wife, she was at liberty, to DEVITT v deal with it as she pleased ; and if the transaction was only colour- FAIISSETT. able, it was stated as real in order to escape from the restraint on anticipation affecting the fund while unpaid. There is another -view of these transactions which would lead to a similar result, namely, that the mortgage of 1872 should be dealt with as a new and separate transaction ; that is, als a subÂsisting security for the sum stated to have been then lent, and the trust thereby declared. confined according to its terms to a separate use not restrained. from anticipation, leaving Mrs. Faussett to her remedy, if any, upon the deed of 1871. The former view is, I consider, the more correct one; and upon it I hold that, in the events which have happened, the Plaintiff is not debarred by the restraint on anticipation from his right to be satisfied out of the moneys mentioned in the statement of claim the amount due on Mrs. Faussett's promissory notes. I base this conclusion on the nature and effect of the deeds of 1871 and 1872, and I abstain from considering the important geÂneral question raised as to the effect of a clause against anticiÂpation in reference to a capital fund not producing income. Solicitors for the Plaintiff : Messrs. Larkin Co. Solicitor for the Defendant : Mr. S. C. M'Cormick. MILROY v. EDGAR Ld. Chan. 1881. Judgment mortgage-Affidavit of ownership-Misdescription of townlancl and parish-Severance of joint tenancy-13 c3. 14 Vict. c. 29. Where lands were indifferently called "the demesne of Down," "the demesne of Downpatrick," or "the demesne," and a judgment was registered as a mortgage against a portion of them described in the affidavit of ownership as " part of the demesne lands of Downpatrick, . . . . in the parish of. DownÂpatrick, barony of Lecale, and county of Down," there being no townland known. as "Downpatrick," or "the demesne lands of Downpatrick," and no parish VOL. VII. 2 S June 21. Nov. 9. LAW...

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5 cases
  • Provincial Bank of Ireland v Tallon
    • Ireland
    • High Court
    • 24 November 1938
    ... ... Held also, applying M'Ilroy v. Edgar, 7 L. R. Ir. 521, that the effect of the registration of O'C.'s judgment against the premises was to sever the joint tenancy therein ... ...
  • Judge Mahon and Others v Lawlor (Administrator Ad Litem of the Estate of Liam Lawlor)
    • Ireland
    • Supreme Court
    • 25 November 2010
    ...of surviving joint tenant - Re Pollard's Estate [1863] 32 LJ Ch. 657 and York v Stone [1709] 1 Salk 158 approved; M'Ilroy v. Edgar (1881) 7 LR Ir. 521 and Re Scanlon [1897] 1 IR 462 considered; Lord Abergavenny's Case (1604) Pasch 5 Jacobi approved - Land and Conveyancing Law Reform Act 200......
  • Judge Mahon and Others v Lawlor (Administrator Ad Litem of the Estate of Liam Lawlor)
    • Ireland
    • High Court
    • 30 July 2008
    ...1965 S4(C) RSC O.15 r37 IRWIN v DEASY 2004 4 IR 1 IRWIN v DEASY 2006 2 ILRM 226 WYLIE IRISH LAND LAW 3ED 1997 PARA 7.22 MCILROY v EDGAR 1881 7 LR IR 521 PROVINCIAL BANK v TALLON 1938 IR 361 CONTAINERCARE (IRELAND) LTD v W & ANOR 1982 IR 143 FITZGERALD LAND REGISTRY PRACTICE 2ED 1995 129 ......
  • Containercare Ltd v Wycherley
    • Ireland
    • High Court
    • 1 January 1982
    ...I.R. 478. 8 W. v. W. [1981] I.L.R.M. 202. 9 Nestor v. Murphy [1979] I.R. 326. 10 C. v. C. [1981] I.L.R.M. 357. 11 McIlroy v. Edgar (1881) 7 L.R.Ir. 521. 12 Provincial Bank v. Tallon [1938] I.R. 361. Judgment mortgage - Registration - Effect - Estate of judgment debtor - Whether estate veste......
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