Re Jacks

JurisdictionIreland
CourtSupreme Court
Judgment Date01 January 1953
Date01 January 1953

Supreme Court.

In re Jacks.
In the Matter of the REGISTRATION OF TITLE ACTS, 1891 and 1942, And of ROSE JACKS, Registered Owner, Folio No. 867L, City of Dublin

Land Registry - Charge - Application to Court by chargeant for possession of land - Procedure - "Summary manner" - Application should be brought by originating summary summons - Registration of Title Act, 1942 (No. 26of 1942), s. 13 (a) - Rules of the High Court and Supreme Court, 1926,Or. 1, r. 2; Or. 3, r. 1 (iv) (p).

Notice of Motion.

Rose Jacks, the registered owner of the premises comprised in Folio No. 867L of the Register of Leaseholders, City of Dublin, created a charge on the said premises in favour of the Norwich Union Life Insurance Society, who were registered as owners thereof on the 24th February, 1949. Default having been made in the payment of principal and interest secured by the said charge, an application by notice of motion issued out of the Central Office of the Land Registry was made to the High Court (Maguire J.) on behalf of the Society, for possession of the said premises, pursuant to s. 13 (a) of the Registration of Title Act, 1942. A preliminary objection was raised by the registered owner of the lands that the procedure adopted was unauthorised and that the proper procedure under the section was an application to the Court by originating summary summons in conformity with Or. I, r. 2, and Or. 3, r. I (iv), of the Rules of the High Court and Supreme Court, 1926.

From the above judgment the registered owner appealed to the Supreme Court (2).

An application to the Court by the registered owner of a charge for possession of the land pursuant to s. 13 (a) of the Registration of Title Act, 1942, should be by originating summary summons and not by notice of motion.

So held by the Supreme Court (Maguire C.J., Murnaghan and O'Byrne JJ.; Lavery and Kingsmill Moore JJ. dissenting).

Cur. adv. vult.

Maguire J. :—

This is an application by notice of motion, dated the 9th October, 1951, by the applicants as registered owners of a charge for £1,595 on the lands comprised in Folio No. 867L, Register of Leaseholders, City of Dublin, pursuant to s. 13 (a) of the Registration of Title Act, 1942, for an order for possession of said lands.

The notice of motion was personally served on Mrs. Jacks. Counsel on her behalf has raised the preliminary objection that the proceedings are not maintainable by notice of motion; that they should have been brought by summary summons under Or. 3, r. I (iv), of the Rules of the High Court and Supreme Court, 1926, and that if this Rule does not apply the procedure is governed by s. 22 of the Courts of Justice Act, 1924. It is further objected that the Statute requires procedure by summary summons.

As the notice of motion has been duly served and the defendant has appeared, the objection is a technical one. Nevertheless, it raises matters of some importance. For that reason I reserved judgment.

Sect. 13 (a) of the Registration of Title Act, 1942, provides:—

"(a) when the principal money secured by the charge has become due, the registered owner of the charge or his personal representative may apply to the Court in a summary manner for possession of the land or any part of the land, and on such application the Court may, if it so thinks proper, order possession of the land or the said part thereof to be delivered to the applicant, and the applicant, upon obtaining possession of the land or the said part thereof, shall be deemed to be a mortgagee in possession."

Sections 1 and 2 of the Act of 1942 provided that that Act and the Local Registration of Title (Ireland) Act, 1891, be cited together as the Registration of Title Acts, 1891 and 1942, and that the Acts should be construed together.

The Local Registration of Title (Ireland) Act, 1891, came into force on the 1st January, 1892. Sect. 4, sub-s. 2, set up and established a Central Office for the purpose of the Act. Sect. 94, sub-s. 1, gave power to the Land Judge with the approval of the Lord Chancellor to make general rules for the purposes of the Act. Rules were issued from time to time and General Rules were issued in 1896. These continued in operation until 1910 when they were replaced by the Orders and Rules of the 1st September, 1910. The early rules are silent as to Court applications, otherwise than providing for applications in writing to the Court under s. 52 of the Act, and by notice of motion under s. 34 of the Act, Order VI of the orders and Rules of 1910 prescribed procedure by way of notice of motion for such applications as were to be made to the High Court under the Act of 1891. Rule 9 of Order VI made provision for the transmission and service of such notices through the Notice Department of the Central Office. These Orders and Rules of 1910 continued in operation until 1937.

Sect. 73 of the Courts of Justice Act, 1936, constituted the Local Registration of Title Rules Committee and s. 74 transferred the power of making general rules conferred by s. 94 of the Local Registration of Title (Ireland) Act, 1891, to the Local Registration of Title Rules Committee with the concurrence of the Minister for Justice. Sect. 4 of the Registration of Title Act, 1942, provided:—

"4.—The committee constituted by section 73 of the Courts of Justice Act, 1936, shall be styled the Registration of Title Rules Committee in lieu of the style assigned to it by that section."

On the 12th October, 1937, Land Registration Rules (S. R. and Or., 1937, No. 264) were duly made. These Rules came into operation on the 1st December, 1937, and rescinded as from the 30th November, 1937, all the Orders and Rules made pursuant to the Local Registration of Title (Ireland) Act, 1891—including the Rules of 1910.

The Rules of 1937 made no provision for Court procedure, an omission which it is difficult to understand. In practice, since 1937, the procedure by way of notice of motion, which had been in force continuously from the commencement of the Act, has been carried on by the office of the Registrar of Titles. At no time since the Act of 1891 came into force was procedure by summons or summary summons adopted, in practice, or prescribed by any Land Registration Rule. In pursuance of this long established practice the notice of motion in this case was issued by the Registrar of Titles' Office.

Sect. 17 of the Courts of Justice Act, 1924, transferred to the High Court the jurisdiction of the Land Judge under the Act of 1891. Sect. 22 of the Courts of Justice Act, 1924, provides:—

"22.—The jurisdiction vested in and transferred to the High Court and the Supreme Court and the Chief Justice respectively shall be exercised so far as regards pleading, practice and procedure generally, including liability as to costs, in the manner provided by such rules of court as may be made pursuant to this Part of this Act, and where no provision is contained in any such rules of court and as long as there shall be no rule with reference thereto, it shall be exercised as nearly as possible in the same manner in which it might have been exercised by the respective courts from which such jurisdiction shall have been transferred, by this Act."

Sect. 102 of the Courts of Justice Act, 1924, provided that the officers of the High Court were required to perform similar duties in the Courts established in 1924 unless and until otherwise determined by the Oireachtas. The Court Officers Act, 1926, which terminated the offices and officers of the Supreme Court of Judicature in Ireland, provided, by s. 32:—

"32.—Nothing in this Act shall apply to the Central Office established under the Local Registration of Title (Ireland) Act, 1891 nor to any Local Office established under that Act which immediately before the commencement of Part II of this Act is under the management and control of a person who is not the Clerk of the Crown and Peace, and neither the said Central Office nor any such Local Office shall for the purposes of this Act be deemed to be or to have been attached to the High Court or to the former Supreme Court of Judicature or any branch or division thereof."

The High Court Rules, 1926, made under the Courts of Justice Act, 1924, made no reference to procedure in Land Registry matters. Order 3, r. 1, omits to include Land Registry matters within its provisions. Order 1 provides for the continuance of existing practice and procedure, save where otherwise provided for.

The Registration of Title Act, 1942, confers additional jurisdiction on the High Court. There are no rules under the Act of 1942. There was, of course, no provision under the Rules of 1910 or the Rules of 1937 to cover procedure under the Act of 1942. That may have given rise to the misunderstanding here.

The jurisdiction has been exercised as hitherto by the procedure by notice of motion adopted under the Act of 1891, as provided in the General Rules of 1896 and 1910. This practice was recognised, and given effect to, by Mr. Justice Johnston in the case of In re Irwin(1) a decision subsequent to the Land Registration Rules of 1937, where a similar point to that now raised was argued. There is no High Court Rule dealing with the subject-matter of this application. I am of opinion that the contention of Mrs.

Jacks that it is governed by Or. 3, r. 1, of the Rules of 1926 is unsustainable.

There remains to consider the question of construction of the provisions of s. 13 of the Act of 1942. I am quite unable to accept the argument that this section of the Act should be construed, or must be construed, as meaning that the application should be made by summary summons. I think the word, "summary," is used in its ordinary sense. It is used in contradistinction to "plenary." "In a summary manner" does not necessarily mean "by summary summons." The intention of the Act was to provide for a short and simple application to the Court without the formality or expense of full proceedings...

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4 cases
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  • Bank of Ireland Mortgage Bank v Peter Cody
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    ...the mortgagor. 41 . The procedures governing the grant of possession by summary means was analysed in some detail in the case of Re Jacks [1952] IR 159 where what was under consideration was whether the action was commenced by summary summons, or whether a motion for judgment before the Lan......
  • O'B. v W
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    ...the law was not mentioned in argument, I do not express any opinion on it. 1 [1970] I.R. 61. 2 See p. 39, post. 3 (1859) Bell C.C. 46. 4 [1952] I.R. 159. 5 See pp. 39-40, 6 See p. 34, ante. ...
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    ...brought as applications under s. 52 of that Act in the manner prescribed by the Local Registration of Title Rules. 1910. In re JacksIR [1952] I.R. 159 referred to and distinguished; (2) the Land Trust had power to sell cottages; (3) the Land Trust were not liable to repair cottages for tena......

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