Re Murphy

• Jurisdiction: Ireland
• Judgment Date: 26 June 1928
• Date: 26 June 1928
• Court: High Court (Irish Free State)

In re Murphy.

In the Matter of the LOCAL REGISTRATION OF TITLE (IRELAND) ACT, 1891, and of JOSEPH MURPHY, a Registered Owner of Land, Folio 858,County Dublin

Land Registry - Sale by registered owner - Registration of judgment mortgage prior to registration of transfer to purchaser - Purchaser registered subject to judgment mortgage - Equitable rights of purchaser - Cancellation of entry of judgment mortgage in register - Sufficiency of affidavit to register judgment mortgage - Name of barony omitted - Folio stated - Jurisdiction of Registrar of Titles - Evidence - Matters to be determined by the Court - Judgment Mortgage Act, 1850 (13 & 14 Vict. c. 29), sect. 6 - Local Registration of Title (Ir.) Act, 1891 (54 & 55 Vict. c. 66), sects. 21, 34, 35, 36, sub-sect. 1, 44, sub-sect. 2.

Appeal by Joseph Murphy, the registered owner of lands comprised in Folio 858, County Dublin, from an order of the Registrar of Titles, dated the 25th of April, 1928. The appellant applied that the said order might be set aside or rescinded, and that an order be made directing cancellation of the entry of a judgment mortgage, registered on behalf of Patrick J. M'Cormick, of Balbriggan, County Dublin, on the 29th day of September, 1926, against the interest of Philip Gilsenan in the said lands, on the following grounds:—

1. That the affidavit of judgment for the purpose of registering the judgment as a mortgage did not comply with the provisions of sect. 6 of the Judgment Mortgage Act, 1850 (13 & 14 Vict. c. 29), in that it did not specify the barony in which the lands to which it relates were situate; and

2. That the Registrar refused to receive, and should have received, evidence tendered on behalf of the said Joseph Murphy, to prove that prior to the wearing and registration of the said affidavit the said Philip Gilsenan had entered into a binding contract for the sale of the said land to the said Joseph Murphy, and had on the 20th day of July, 1926, executed a transfer thereof for valuable consideration to the said Joseph Murphy, and that the said Patrick J. M'Cormick had knowledge and notice of the said contract and transfer, and that the said Philip Gilsenan at the date of the obtaining of the judgment referred to in the said affidavit was, to the knowledge of the said Patrick J. M'Cormick, a trustee of the said lands for the said Joseph Murphy.

3. That, at the date of the registration of the said judgment mortgage (if valid), the said Philip Gilsenan had no interest in the registered land which could be affected by such judgment mortgage; the beneficial interest of the said Philip Gilsenan in the said lands having then been transferred to, and become vested in, Joseph Murphy under and by virtue of a binding contract for sale for valuable consideration, evidenced by an unregistered transfer to the said Joseph Murphy duly executed by the said Philip Gilsenan on the 20th July, 1926, and the payment by the said Joseph Murphy to the said Philip Gilsenan of the consideration therein mentioned.

The facts have been summarised in the head-note and are fully set forth in the judgment.

In the case of lands registered under the Local Registration of Title (Ir.) Act, 1891, where the Folio gives all particulars it is not necessary to state all the qualifications as to the description of the lands required by sect. 6 of the Judgment Mortgage Act, 1850, in an affidavit to register a judgment as a mortgage; and, accordingly, such an affidavit sufficiently complies with the section, although the name of the barony in which the lands are situate has been omitted, the lands being sufficiently identified by specifying the correct Folio Number in the affidavit.

G., who was registered as full owner of certain lands, sold them to M. on 20th July, 1926. M.'s title was not registered until October 4, 1926. Between the 20th July and the 4th October one, MacC., obtained and entered up a judgment in the High Court...