Murray v Diamond

JurisdictionIreland
JudgeMr. Justice Barrington
Judgment Date01 January 1982
Neutral Citation1982 WJSC-HC 1265
Docket NumberNo.1100 Sp./1980
CourtHigh Court
Date01 January 1982

1982 WJSC-HC 1265

THE HIGH COURT

No.1100 Sp./1980
MURRAY v. DIAMOND
IN THE MATTER OF THE REGISTRATION OF TITLE ACT 1964

BETWEEN:

DENIS MURRAY
Plaintiff

and

DAVID DIAMOND
Defendant
1

Judgment of Mr. Justice Barringtondelivered the 7th day of November 1981.

2

This judgment deals with a net point of law raised as an issue between the plaintiff Denis Murray and the defendant David Diamond and his wife Jean Diamond by Miss Justice Carroll in her order herein made on the 6th day of July, 1981.

3

The issue is set out in the schedule to that order and is asfollows:-

"Whether the judgment mortgage in favour of Denis Murray constitutes a purported conveyance by David Diamond of his interest in his family home such as would be rendered void by Section 3 (i) of the Family Home Protection Act 1976by reason of the absence of the prior written consent thereto by hisspouse".

4

The point raised is cearly one of great practical importance raising, as it does, the question of the validity of judgment mortgages registered against the husband's interest in the matrimonial home without the consent of the wife.

5

The answer to the question raised turns, it appears to me, on the nature of a judgment mortgage itself. The Judgment Mortgage Act 1850 provides a means whereby a judgment creditor, who complies with the appropriate formalities, can convert his judgment into a judgment mortgage. One of the things he must do is to swear and register an affidavit giving particulars of his debt and particulars of the lands sought to be affected. It is this affidavit which, when registered, becomes the judgment mortgage (see Madden on Deeds 2nd Edition page 117).

6

"What is a judgment mortgage?". Lord Chancellor Brady asked in Re Flood (17 Irish Chancery page 125) and answered -

"It is, in fact, the affidavit made for the purpose of registering a judgment as a mortgage".

7

Section 6 of the Judgment Mortgage Act 1850 sets out what such affidavit must contain, and goes on to provide that it will be lawful for the creditor making such affidavit to register same in the Registry of Deeds by depositing an office copy of such affidavit there. It then goes on to provide that -

"Such copy shall be numbered and transcribed and shall be entered in the books and indexes kept in the said office, in like manner as if the same were a memorial of a deed; and for the purpose of such entries the creditor under such judgment, decree, order, or rule shall be deemedthe grantee, and the debtor thereunder shall be deemed the grantor; and the amount of the debt, damages, costs or monies recovered or ordered to be paid thereby shall be deemed theconsideration.........."

8

It seems clear from this that it is the registration of the office copy of the affidavit which converts the judgment into a judgment mortgage. But while the section says that for the purpose of the entries made in the register the judgment creditor is to be deemed the grantee and the judgment debtor to be deemed the grantor it is clear that the judgment mortgage comes into existence by operation of the statute and not by virtue of any positive act of the judgment debtor.

9

Section 3 sub-section 1 of the Family Home Protection Act 1976provides that, subject as therein, the purported conveyance is to be void where "a spouse, without the prior consent in writing of the other spouse, purports to convey any interest in the family home to any person except the other spouse".

10

In my opinion when a judgment mortgage is created the spouse against whom it is registered, does not convey any interest in the family home. A fortiori he does not "purport" to convey any interest in the family home. The spouse against whom the judgment mortgage is registered is merely a patient. The judgment creditor is the agent and the mortgage comes...

To continue reading

Request your trial
4 cases
  • B.L. v M.L.
    • Ireland
    • Supreme Court
    • 1 January 1992
    ...284; (1973) 109 I.L.T.R. 29. Murphy v. Attorney General [1982] I.R. 241. Murphy v. Murphy [1962/3] Ir. Jur. Rep. 77. Murray v. Diamond [1982] I.L.R.M. 113. N. v. K. [1985] I.R. 733; [1986] I.L.R.M. 75. E.N. v. R.N. [1990] 1 I.R. 383. National Provincial Bank v. Ainsworth [1965] A.C. 1175; [......
  • Trinity College Dublin v Kenny
    • Ireland
    • Supreme Court
    • 21 December 2020
    ...9 H.L. Cas. 619.” 47 That description is well established in the authorities: Containercare v. Wycherley and see also Murray v. Diamond [1982] ILRM 113, Re Murphy and McCormack [1930] I.R. 322 and Re Strong [1940] I.R. 382, ACC Bank Plc v. Markham [2005] IEHC 437, [2007] 3 IR 533 and the re......
  • A.T. v B.T.
    • Ireland
    • High Court
    • 29 November 2013
    ...1993/1/153 P (C) v P (D) 1983 ILRM 380 1982/13/2538 CONTAINERCARE (IRL) LTD v WYCHERLEY 1982 IR 143 1982 ILRM 502 MURRAY v DIAMOND 1982 ILRM 113 1982/7/1265 FIRST NATIONAL BUILDING SOCIETY v RING 1992 1 IR 375 1991/9/1956 Family law – Family home - Beneficial interest - Indebtedness - Borro......
  • W v Somers
    • Ireland
    • Supreme Court
    • 18 March 1983
    ...Glynn [1973] I.R. 188. 3 Roberts v. Holland [1893] 1 Q.B. 665. 4 Containercare Ltd. v. Wycherley [1982] I.R. 143. 5 Murray v. Diamond [1982] I.L.R.M. 113. 6 Williams & Glyn's Bank Ltd. v. Boland [1981] A.C. 487. 7 Northern Bank v. Henry [1981] I.R. 1. Cases Stated. On the 2nd April, 1982, H......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT