O'Meagher v Daly

• Jurisdiction: Ireland
• Judgment Date: 20 April 1917
• Date: 20 April 1917
• Court: Chancery Division (Ireland)

O'MEAGHER

and

DALY.

CHANCERY DIVISION

Costs — Mortgage — Suit by puisne mortgagee to realize mortgage — Proceeds insufficient — Priority.

Batten v. Dartmouth Harbour CommissionersELR 45 Ch. D. 612.

Handcock v. HandcockUNK 1 Ir. Ch. Rep. 444.

Hilliard v. MoriartyIR [1894] 1 I. R. 316.

Leonard v. KellettUNK 27 L. R. Ir. 418.

Northern Banking Co. v. Sloan See 2 N. I. J. 54.

Wright v. KirbyENR 23 Beav. 463.

VOL. I.] CHANCERY DIVISION. 341 O'MEAGHER v. DALY. Costs—Mortgage—Suit by puisne mortgagee to realize mortgage—Proceeds insufficient—Priority. In the absence of special circumstances a puisne mortgagee who institutes proceedings for sale is only entitled to costs with his demand, and in the event of a deficiency is not entitled to costs in priority to earlier incumbrancers. APPLICATION on summons that the plaintiff be declared entitled to be paid 'her costs of the suit, and the costs of and incidental to the proceedings before the Sub-Commission Court, properly and necessarily incurred, in priority to the incumbranoes affecting the lands, as mortgagee's costs. This was a mortgagee's suit for the realization of a mortgage of the defendant's interest in certain lands held under a judicial tenancy. The usual order was made by the Court, directing an account to be taken of what sum was due to the plaintiff on foot of the mortgage, and, in default of payment by the defendant of the amount so found, that the lands should be sold, and directing an inquiry as to the incumbrances affecting the lands, and the amounts and priorities thereof. The lands were held under a judicial tenancy, and the landlord having claimed to exercise his right of pre-emption, the true value of the lands was, under sect. 1 of the Land Law (Ireland) Act, 1881, fixed by the Land Commission at £500, which sum was insufficient to pay the incumbrancer, who was sixth in priority, leaving nothing for the plaintiff, whose mortgage was at No. 7 on the schedule of incumbrances. The incumbrancer at No. 6 was consulted as to the Land Commission proceedings, but declined to interfere or make himself liable for any costs. S. L. Brown K.C. (with him Devitt), for the plaintiff :— Every mortgagee's suit is, in Ireland, brought for the benefit of all incumbrancers. " Where a subsequent incumbrancer instiÂtutes proceedings, not iu his own interest only, but to secure or to realize and distribute the mortgaged property, or to ascertain 342 THE IRISH REPORTS. 0917. Barton .1. the priority of the, incumbrancers, he is entitled to his costs, so 1917. far as incurred for these objects, as a first charge on the funds": O'MEAGHELL Halsbury, Laws of England, vol. xxi, p. 232, par. 425 ; Wright v. DALY. v. Kirby (1), followed in Batten v. Dartmouth Harbour Commis sioners (2). This suit was in truth for the administration of this property for the benefit of all parties. H. D. Conner KC., for the incumbrancer : In a mortgagee's action a mortgagee gets his costs with his demand, and gets no costs if he is not reached : Handcock v. Handcock (3); Fisher, Law of Mortgage, p. 934, par. 1863. A puisne mortgagee does not sue in this Court (as he does in the Land Judge's Court) on behalf of himself and all other mortgagees. He sues on his own mortgage : Leonard v. Kellett (4) ; Hilliard v. Moriarty (5); Northern Banking Co. v. Sloan (6). Cur. adv. volt. April 20. BARTON J.:— The plaintiff instituted this suit by originating summons, dated November 25th, 1913, claiming a declaration of charge upon certain lands of the defendant under a deed of charge...