Re Hamilton's Estate

• Jurisdiction: Ireland
• Judgment Date: 14 July 1859
• Date: 14 July 1859
• Court: Court of Appeal in Chancery (Ireland)

Ch. Appeal.

In re HAMILTON'S ESTATE.

Corbett v. De Cantillon 5 Ir. Chan. Rep. 127.

Montgomery v. M'Evoy 5 Ir. Chan. Rep. 128, n.

M'Auley v. Clarendon 8 Ir. Chan. Rep. 121, 568.

Beavan v. Lord OxfordENR 6 De G., M. & G. 507.

Murphy v. M'Cracken Not reported.

Jones v. Gibbons 9 Ves. 411.

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

Kinderly v. JervisENR 22 Beav. 1.

Boshell v. Boshell 1 Sch. & Lef. 502.

Gubbins v. Gubbins 1 Dr. & W. 160, n.

Gardiner v. Blesinton 1 Ir. Chan. Rep. 64, 79.

Corbett v. De Cantillon 5 Ir. Chan. Rep. 126.

In re Ryan 3 Ir. Chan. Rep. 33.

Montgomery v. M'Evoy, and Corbett v. De Cantillon 5 Ir. Chan. Rep. 126.

M'Auley v. Clarendon 8 Ir. Chan. Rep. 121.

Warburton v. Ivie 6 Bl., N. S., 32.

512 CHANCERY REPORTS. 1859. Ch. Appeal. July 14. A judgment APPEAL on behalf of Thomas Blair Huthwaite, from an order registered as a mortgage, un- of the Landed Estates Court. der the pro- visions of the In 1853, Gustavus Hamilton borrowed £350 from H. J. Garbo* 13 & 14 Vic., e. 29, is upon his promissory note ; and in order further to secure repay titled to pr'- ment, Hamilton deposited with Garbois, by way of equitable ority over a prior unregis- mortgage, the lease of a house which he possessed for a term of years ; tend instru ment, of which and upon that occasion he wrote to Garbois the following letter:-the conusee has not had " 6th day of July 1853. notice. " MY DEAR sre..-You have this day lent me the sum of £350, on Statement. my promissory note, dated this day, for that sum, payable on the 2nd of July 1858, with interest at £6 per cent. per annum, which interest I hereby undertake to pay you quarterly, on every 5th day of July, 5th day of October, 5th day of January and 5th day of April, in each and every year ; and as an additional security, I herewith send you the lease of my ground in Lennox-street, PortoÂbello, in the city of Dublin, from William Watson, Esq., dated 1st Of December 1848, which you can hold until you are repaid the sum of £350; and which property produces the yearly profit-rent of £45, over and above the head-rent of £15 a-year. " Yours very truly, GusTAvOS HAMILTON. " To Henry Garbois, Esq." That letter was never registered. Garbois died in September 1853, and Huthwaite was now his sole personal representative. In Trinity Term 1855, Thomas Talbot Hamilton obtained a judgment against Gustavus Hamilton for £500, and registered that judgment as a mortgage, under the provisions of the 13 & 14 Vic., c. 29, on the lands comprised in the deposited lease, together with other lands. In 1858, the premises in question were sold in the Incumbered Estates Court; and on the settlement of the final schedule of incumÂbrances in the Landed Estates Court, in 1859, Judge Longfield decided that the unregistered equitable mortgage of 1853 should be ic:4"9#74.vie, 7 Apr/6 14?. CHANCERY REPORTS. 513 postponed to the claim on foot of the judgment of 1855, which had been registered as a mortgage. Against that decision the present appeal was brought, upon the following grounds : First.-That the equitable lien constituted by the deposit of the lease of 1848, though such deposit was accompanied by the letter of 5th of July 1853, was a right incapable of registration, and therefore not within the Registry Acts.. Second.-That no conflict can arise between a judgment regisÂtered as a mortgage, and an unregistered incumbrance, both affecting the same property, inasmuch as the registration of his judgment transfers to the judgment creditor nothing more than the interest of the judgment debtor in such property, subject to all prior bona fide incumbrances, registered and unregistered. Third.-That a judgment creditor is not a purchaser of the lands against which his judgment may be registered as a mortgage, nor entitled to the protection of the Acts for the registration of deeds in Ireland. Mr. May, for the appellant. The deposit of the lease constituted the appellant's security. Suppose the lease had not been sent, the letter, without the lease, would have been a nullity, but the lease without the letter would have been a perfect security. The letter was not capable of being registered. But even supposing that it were capable of being regisÂtered, the judgment mortgage would not be entitled to priority. The Act upon which this question turns is the 14 & 15 Vic., c. 29. The 6th section enacts that a judgment creditor may register an affiÂdavit in the way prescribed ; and the 7th section enacts that the registration of such affidavit shall have the effect of a mortgage of the lands named in the affidavit ; but there is nothing in the Act enÂabling the judgment creditor who so registers his judgment as a mortÂgage to oust bona fide incumbrances existing, though not registered, before the period when the judgment was obtained.-[The LORD JUSTICE OF APPEAL. Has not the judgment creditor, when he has registered his judgment as a mortgage, all the right which a regis VOL. 9. 65 Argument. 514 CHANCERY REPORTS. tered conveyance can give him ?-The LORD CHANCELLOR. The whole effect of the Registry Act was to render void a prior unreÂgistered instrument in favour of a subsequent registered instrument; and this Act gives to a judgment creditor, who has registered his judgment as a mortgage, the same rights which the Registry Act gave to subsequent purchasers. If this Act did not give such a right-to the judgment creditor, it would give him nothing].-The policy of this Act was not to render the judgment creditor a purchaÂser, but simply to oblige him, if he wished to have recourse to the lands, to place a memorial to that effect on the registry.-[The Loan CHANCELLOR. But the Act does not stop there, but goes on to say that the judgment creditor shall be actually the grantee, and shall have all the interest in the lands which the judgment creditor could give him].-The policy of the Registry Act was to protect purchasers against concealed incumbrances, but a judgment creditor is not in the same position. Corbett v. De Cantillon (a) will be cited on the other side ; but that was the case of a contest between a judgment creditor who had registered his judgment as a mortgage, and a husband and wife...