Re Stewart

CourtSupreme Court (Irish Free State)
Judgment Date01 January 1925
Date01 January 1925
S. C.,
In re Stewart

Holding subject to land purchase annuity - Charge in excess of permitted amount -Irish Land Act, 1903 (3 Edw. 7, c. 37), s. 54 (3) - Repeal of restriction by the Land Act, 1923 (No. 42 of 1923), s. 78 - Effect of repeal - Repeal not retrospective - Interpretation Act, 1889 (52 53 Vict., c. 63). s. 38 (2) (a) (b) (c) - Vendor's lien - Other security taken - Abandonment of lien.

Section 54 (3) of the Irish Land Act, 1903 (3 Edw. VII., c. 37), provides that the proprietor of a holding, for the purchase of which the Land Commission have made an advance under the Land Purchase Acts, shall not, without the consent of the Land Commission, mortgage or charge the holding for any sum or sums exceeding in the aggregate ten times the amount of the purchase annuity, and that every instrument of mortgage or charge by which the holding is charged with any larger sum shall be null and void as to the excess. By s. 78 of the Land Act, 1923 (No. 42 of 1923), passed on August 9th, 1923 s. 54 (3), of the Irish Land Act, 1903, is repealed. In 1921 the purchaser of three farms, of which one was held under a fee-farm grant, and the other two had been purchased under the Land Purchase Acts, and were held subject to Land Purchase annuities aggregating £14 5s. 4d. paid therefor £560 in cash, and the balance of the purchase money, amounting to £950, was secured, as to £550 thereof by a mortgage on the farm held under the fee-farm grant, and as to the remaining £400 by a charge on the two farms held subject to the land purchase annuities. On October 31st, 1923, the purchaser was adjudged bankrupt. On January 2nd, 1924, the vendors, acting under their powers of sale as mortgagees, sold the three farms for £950, and appropriated £400 in satisfaction of their charge on the two farms subject to the land purchase annuities. It was submitted by the Official Assignee in Bankruptcy that, as regards the charge for £400, the vendors were entitled to retain only £142 13s. 4d., a sum representing ten times the amount of the annuities. On behalf of the vendors it was contended that the repeal effected by the Land Act, 1923, removed the restriction on the amount of their charge, and that they were entitled to retain the full amount. Alternatively, they relied upon a vendor's lien:—Held (affirming Murnaghan. J.), that the instrument of charge being, by virtue of s. 54 (3) of the Irish Land Act, 1903, null and void from the moment of its creation as to the excess...

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