National Bank v McGovern

• Jurisdiction: Ireland
• Judgment Date: 22 January 1931
• Date: 22 January 1931
• Docket Number: (1929. No. 2563.)
• Court: High Court (Irish Free State)

National Bank v. M'Govern.

THE NATIONAL BANK

Limited

and

KATHLEEN M'GOVERN

(1929. No. 2563.)

Mortgage, equitable - Bank's claim to - Premises assigned by wife to husband - Proviso for premises reverting to wife if premises became liable to seizure or assignment under process of law - Deposit of title deeds by husband with Bank - Action by Bank on foot of equitable mortgage - Premises claimed by wife - Alleged subsequent deposit of title deeds by her with Bank - Action by Bank against her on foot of her equitable mortgage - Conflict of evidence as to deposit of title deeds - Doctrine of equitable mortgage.

Premises were assigned in 1917 by a wife to her husband on marriage. The deed contained a proviso that, should the husband during the lifetime of the wife assign or dispose of the premises without her consent in writing, or suffer any act by which the premises should be liable to seizure or assignment under process of law or otherwise, the premises were to revert to the wife. In 1923 the husband deposited the title deeds of the premises with a Bank (at one of their country branches) to secure money due by him to the Bank. In 1926 the Bank instituted proceedings against him on foot of the equitable mortgage created by the said deposit of the title deeds, and in 1928 an order was made declaring the amount secured by the said equitable deposit well charged on his interest in the premises, and directing a sale in default of payment of the amount due by him. The wife claimed that under the proviso in the deed of assignment by her to her husband the premises reverted to her. Subsequently the Bank brought an action against the wife on foot of an alleged equitable mortgage by a deposit of the same title deeds with them, as the then manager of the said branch of the Bank stated that on 27th August, 1924, the wife had an interview with him and that he handed the deeds to her, and that she handed them back to him by way of deposit as security for her husband's debt to the Bank. The wife denied that she had so deposited the deeds. On the trial of this action:

Held that, as the Bank originally came into possession of the deeds otherwise than by the deposit relied on, and as there was a conflict of verbal testimony without any determining circumstance being proved, the character and significance of the possession of the deeds was left ambiguous. The doctrine of equitable deposit did not apply to such a case, the foundation of the doctrine being that under certain circumstances the possession of the documents speaks for itself. Where the possession is ambiguous and there is only a conflict of oral testimony as to what really occurred, the foundation for the application of the doctrine is absent. Further, whether the deeds were handed to the wife and re-deposited by her or not, the Court was satisfied on the evidence that the wife never understood her position, or that she was depositing the deeds as security for her husband's debt, and accordingly the action against her must be dismissed.

Trial of Action.

The action, which was commenced by summary summons, but was subsequently adjourned for plenary hearing, was brought by the plaintiffs, the National Bank, Limited, seeking a declaration that, by virtue of the deposit, without writing, on the 27th August, 1924, by the defendant, Kathleen M'Govern, with the plaintiffs as their Manorhamilton branch, of the title deeds relating to part of the lands of Carrickboygher, comprised within the village of Blacklion, situate in the Barony of Tullyhaw, and County of Cavan, formerly held under a lease, dated...