Re Burke

• Jurisdiction: Ireland
• Judgment Date: 20 April 1881
• Date: 20 April 1881
• Court: Chancery Division (Ireland)

Appeal.

Before Law, C., SULLIVAN, M. R., and DEASY and FITZ GIBBON, L.JJ.

IN THE MATTER OF THE ESTATE OF CATHERINE BURKE, ADMINISTRATRIX OF JOHN JOSEPH BURKE, DECEASED,

OWNER;

EX PART CATHRINE BURKE,

PETR.

Warburton v. IvieENR 2 Dow & Cl. 480.

Bushell v. Bushell 1 Sch. & Lef. 98102.

Latouche v. Dunsany Ibid. 160.

Drew v. Earl of NorburyENR 3 Jo & Lat. 303.

Reilly v. Garnett Ir. R. 7 Eq. 17.

per Christian, L. J. S. C. 26.

Eyre v. M'DowellENR 9 H. L. C. 652.

Hamilton's Estate 9 Ir. Ch. R. 512.

Moore v. CulverhouseENR 27 Beav. 639.

In re Hamilton's Estate 9 Ir. Ch. R. 512.

Credland v. PotterELR L. R. 10 Ch. 8.

Russel v. RusselENR 1 Bro. C. C. 269.

Credland v. PottorELR L. R. 10 Ch. 12.

Sumpter v. CooperENR 2 B. & Ad. 223.

O'Connor v. StephensUNK 13 Ir. C. L. R. 63.

Ex parte PriceUNK 1 Buck 221.

M'Kinney's Estate Ir. R. 6 Eq. 445.

Re Driscoll's Estate Ir. R. 1 Eq. 285.

The Agra Bank v. BarryELR Ir. R. 6 Eq. 128; L. R. 7 H. L. 135.

Reilly v. Garnett Ir. R. 7 Eq. 1.

Re Stephens' Estate Ir. R. 10 Eq. 282.

Mill v. HillENR 3 H. L. C. 329.

Phillips v. PhillipsUNK 4 D. F. & J. 208.

Copland v. DaviesELR L. R. 5 H. L. 358.

Sumpter v. CooperENR 2 B. & Ad. 223.

Russel v. Russel 1 Bro C. C. 269.

Ex parte Mountfort 14 Ves. 606.

Ex parte HooperENR 1 Mer. 9.

Warburton v. IvieENR 2 Dow & Cl. 480, 494.

Neve v. PennellENR 2 H. & M. 170, 187.

Cleary v. Fitzgerald Ir. R. 7 Eq. 229, 265.

The Agra Bank v. Barry Ir. R. 6 Eq. 128, 160.

Dalby v. The India and London Assurance CompanyENR 15 C. B. 365.

Godsall v. BolderoENR 9 East 32.

Hales v. Van BerchemENR 2 Vern. 617.

Winn v. BullELR 7 Ch. D. 29.

Bernard v. Drought 1 Moll. 38.

Hewitt v. LoosemoreENR 9 Hare 449.

The London and County Bank v. RatcliffeELR 6 App. Cas. 722.

Neve v. PennellENR 2 H. & M. 170.

The Agra Bank v. Barry Ir. R. 6 Eq. 128.

Hamilton v. MolloyUNK 5 L. R. Ir. 339.

Price v. JenkinsELR 5 Ch. D. 619.

Gardiner v. GardinerUNK 12 Ir. C. L. R. 565.

Lee v. MathewsUNK 6 L. R. Ir. 530.

Price v. JenkinsUNK 5 L. R. Ir. 339.

Warburton v. IvieENR 2 Dow & Cl. 480.

Latouche v. Dunsany 1 Sch. & Lef. 137.

Bushell v. Bushell Ibid. 90.

Mill v. HillENR 3 H. L. C. 828.

Drew v. Lord NorburyENR 3 Jo. & Lat. 302.

Warburton v. IvieENR 2 Dow & Cl 480.

Re Driscoll's Estate I. R. 1 Eq. 285.

In re Hamilton 9 Ir. Ch. R. 512.

The Agra Bank v. BarryELR I. R. 9 Eq. 128; L. R. 7 H. L. 135.

M'Kinney's Estate I. R. 6 Eq. 445.

Phillips v. Phillips 4 De G. F. & Jo. 208.

Warburton v. IvieENR 2 Dow & Cl. 497.

Heydon's Case.UNK 3 Rep. 7.

Pryce v. BuryENR 2 Drew. 42.

Re Hamilton 9 Ir. Ch. R. 522.

Eyre v. M'DowellENR 9 H. L. C. 648.

M' Auley v. Clarendon 8 Ir. Ch. R. 568.

Warburton v. IvieENR 6 Bligh (N. S.) 1.

Neve v. PennellENR 2 H. & M. 187.

Re Driscoll's EstateIr. R. 1 Eq. 285.

Re Driscoll's Estate Ir. R. 1 Eq. 288.

Equitable mortgage Deposit of title-deeds unaccompanied by writing Subsequent registered conveyance for value Bon fide purchase without notice Priority

LAW REPORTS (IRELAND). [L. R. I. grounds of convenience to assume a jurisdiction which does not belong to me. I am obliged to say no rule. Solicitor for Applicant : Mr. Vance. Appeal. • IN THE MATTER OF THE ESTATE OF CATHERINE BURKE, 1881. ADMINISTRATRIX OF JOHN JOSEPH BURKE, DECEASED, Dee. 12, 13, OWNER ; Ex PARTE CATHERINE BURKE, PETR. (1). 20. Equitable mortgage-Deposit of title-deeds unaccompanied by writing-Subse quent registered conveyance for value-Bona fide purchase without noticeÂÂPriority-Registry Act, 6 Anne (Ir.) c. 2. An equitable mortgagee by deposit of title-deeds, unaccompanied by any memorandum in writing, takes priority over a purchaser for value claiming under a subsequent registered deed, without notice of such deposit. Decision of Flanagan, J., reversed. Sumpter v. Cooper (2 B. & Ad. 223) and In re Stephens' Estate (Ir. R. 10 Eq. 282) followed. In re MITinney's Estate (Ir. R. 6 Eq. 445) overruled. APPEAL by the objector, Patrick M'Cabe Fay, from so much of the order of Judge Flanagan, of the 10th of February, 1881, as ordered that the Appellant's objection to the final schedule of incumbrances be overruled (save as to the sum of 300 thereinÂÂafter mentioned), and that the claim No. 4 on the schedule on foot of the deposit without writing made with the Appellant on the 21st of September, 1871, by John Joseph Burke, deceased, of a proposal for a lease of the premises No. 61, Capel-street, and 225, Great Britain-street, in the city of Dublin, be postponed to the claim of Mrs. Catherine Burke, or her trustee William M'Court, under the marriage settlement dated 16th of October, 1871, reÂÂgistered on the 10th of November, 1871, and numbered 5 in the schedule of incumbrances. The Appellant did not appeal from. so much of the order as declared him entitled to a lien on, and to be repaid out of, the purchase-money of the premises sold in the Matter, the sum of 300 (above mentioned), admitted by the Owner (1) Before Law, C., SULLIVAN, M. R., and DEASY and FITZ Grimm, VOL. IX.] CHANCERY DIVISION. 25 to have been advanced by the Appellant to John Joseph Burke, Appeal. deceased, to pay the consideration money expressed in the deed of 1881. assignment of the premises, dated the 19th of August, 1874, and In re Buses a also arrears of head-rent of the premises, and costs of the deed of ESTATE. assignment. The circumstances under which the question of priority arose between the Appellant, claiming on foot of the equitable deposit without writing, made with him on the 21st of September, 1871, of the proposal for a lease of the premises, and its acceptance, and the Respondents claiming under the registered marriage settlement of the 16th of October, 1871, without notice of the deposit, are stated in the report of the hearing below, 7 L. R. Ir. 57. The preÂÂsent appeal had been argued before Lord O'Hagan, C., and the Lords Justices, on the 14th, 15th, and 16th of June, 1881, upon which occasion their Lordships reserved judgment, but eventually pronounced no decision upon that argument, and it was subseÂÂquently arranged that the appeal should be re-argued before a larger Court. Hr. D. H. Madden, Q. C. (with him Mr. Wm. O'Brien, Q. C., and Mr. D. Fitzgerald), for the Appellant :- An equitable mortgage by deposit without writing, not being " a deed or conveyance made and executed," is not within the proÂÂvisions of the Irish Registry Act (6 Anne c. 2), by which certain classes of dealings with land are avoided if not registered. This question must be decided on the 5th section of the Act, The 3rd section provides for the registration of memorials of " deeds or conÂÂveyances " at the election of the parties concerned. The 4th secÂÂtion determines the position " according to the priority of time of registering such memorial " of every " deed or conveyance " so registered, with regard to " every other deed, conveyance, or dispoÂÂsition " of the lands comprised in any such memorial, and applies only to the case of two registered instruments, determining their relative positions according to priority of registration. The 5th section declares fraudulent and void " every deed or conveyance not registered." This is the only section in the Aet which avoids dealings with land by reason of their not being registered. It applies only to instruments in writing, capable of being described. LAW REPORTS (IRELAND). [L. it. I. as " deeds or conveyances." The 15th section provides for the case of there being more " writings " than one for perfecting a seÂÂcurity. That nothing but instruments in writing are included within the terms of the 5th section is further shown by 2 & 3 Wm. 4, e. 87, s. 29, which, dealing with the same subject-matter, transÂÂlates the words " deed or conveyance " by the terms " deed or instrument." The word " disposition " which occurs in section 4 might, no doubt, if it stood by itself, apart from the context, be sufficiently wide to include an equitable mortgage by deposit. But in the first place, this section applies only to a contest between two inÂÂstruments, both registered. It is a special feature of the Irish Registry system. All the English local Registry Acts, 7 Anne c. 20 (Middlesex) ; 2 & 3 Anne c. 4, and 5 Anne c. 18 (West Riding of Yorkshire) ; 6 Anne c. 35 (East Riding) ; and 8 Geo. 2 c. 2 (North Riding), contain sections similar to the 5th section of the Irish Act, but they contain no provisions similar to the 4th section, and consequently registered deeds in England take priority, inter se, according to their dates. Protection against unregistered dealings with land is given in Ireland, as in England, by the provisions of section 5. Section 4 is added for a different purpose. It precludes tacking, &c., and makes the date of registration the test of priority of registered instruments, inter se. A long series of eases show that this section is exclusively conversant with registered instruÂÂments, inter se. See per Tindal, C. J., Warburton v. Ivie (1) ; per Lord Redesdale, Bushell v. Bushell (2) ; per Sir E. Sugden, Latouche v. Dunsany (3) ; Drew v. Earl of Norbury (4) ; per Lord O'Hagan, Reilly v. Garnett (5) ; per Christian, L. J. (6) ; see also Eyre v. IPDowell (7). It is true that in Hamilton's Estate (8) Blackburn, L. J., referred to the 4th section, and to the word " disposition." But in this case there was no argument as to the applicability of the 4th section. In fact the question did not arise, inasmuch as the conflict (as pointed out by Brady, L. C.), was between a registered (1) 2 Dow & CI. 480. (2) 1 Selz. & Lef. 98-102. (3) Ibid. 160. (4) 3 Jo. & Lat. 303. (5) Ir. R. 7 Eq. 17. (6) S. C. 26. (7) 9 H. L. C. 652. (8) 9 Ir. Ch. R. 512. Tor,. IX.] CHANCERY DIVISION. deed and an intrument in writing, which latter would have amounted to a "deed or conveyance " within the 5th section. Even if the question were not closed by authority, it would be impossible to hold that section 4 applied to a conflict between a registered deed and an...