Royal Bank of Ireland v Daly

• Jurisdiction: Ireland
• Judgment Date: 24 January 1938
• Date: 24 January 1938
• Court: Supreme Court

Supreme Court.

Royal Bank of Ireland, Ltd. v. Daly

THE ROYAL BANK OF IRELAND

LIMITED

and

JAMES DALY

Mortgage (Equitable) - Deposit of title deeds - Action to enforce payment of mortgage debt - Absence of previous demand for payment - Whether demand for payment condition precedant to claim by mortgagee - Practice - Transfer of Originating Summons to Circuit Court - No application for transfer made by either party - Whether Judge has jurisdiction of his own motion to transfer - Courts of Justice Act, 1924 (No. 10 of 1924), sects.25, 46, 48 - Courts of Justice Act, 1936 (No. 48 of 1936), sect. 11.

Summary Summons.

The plaintiff's claim as set out in the special indorsement of claim was as follows:—

"(1) For a declaration that, by virtue of the deposit without writing by the defendant with the plaintiffs of the title deeds of premises known as Clifton Cottage, at the junction of Richmond Road and Gracepark Road, Drumcondra, in the Parish of Clontarf and City of Dublin, held under lease, dated the 30th November, 1928, from the Rt. Hon. the Lord Mayor, Aldermen and Burgesses of the City of Dublin to James Daly for a term of 10 years from the 25th March, 1928, subject to the yearly rent of £48, the plaintiffs are entitled to a good and valid equitable charge or lien upon the said premises, Clifton Cottage, to secure all advances made, or to be made, to the defendant; (2) that an account be taken of all moneys due to the plaintiffs on foot of the said equitable charge or lien; (3) that payment of the amount found due on the taking of the last mentioned account may be enforced, if necessary, by a sale of the said premises; (4) that all necessary accounts and enquiries may be taken and had; and (5) that a receiver may be appointed over the said premises."

The defendant was indebted to the plaintiffs on foot of the said mortgage in the sum of £301 10s. 0d., inclusive of principal and interest, but the affidavit verifying the cause of action did not contain any averment as to a previous demand for payment made by the plaintiffs upon the defendant in respect of the said debt. The Poor Law Valuation of the premises which were the subject-matter of the mortgage did not exceed £60.

From the decision of Gavan Duffy J. the plaintiffs appealed to the Supreme Court (1), the grounds of appeal as set out in the notice of appeal being as follows:—

"(1). That the said order was made without jurisdiction; (2) that the learned Judge misdirected himself both in law and on fact; (3) that, in particular, the learned Judge misdirected himself in law in holding that proof of demand of the debt in the summary summons herein referred to is necessary; (4) that if such a demand as is in the preceding paragraph mentioned be necessary, the learned Judge misdirected himself in holding that the summary summons herein was not a sufficient demand; (5) that, contrary to the finding of the learned Judge, there was evidence of default on the part of the defendant; (6) that, alternatively, evidence of default on the part of the defendant is unnecessary before the institution of proceedings; (7) that, in the circumstances proved to have been existing at the date of the issue of the summary summons herein, the learned Judge was wrong in finding that there could not then have been such default as would entitle a legal mortgagee to sell; (8) that the learned Judge was wrong in holding that upon the evidence offered to him no case had been made for the relief sought; (9) that if, and so far as, the relief sought was an order within the discretion of the learned Judge, the learned Judge refused or failed to exercise a proper or any discretion in dismissing the action."

In an action to enforce payment of a mortgage debt due on foot of an equitable mortgage by deposit of title deeds a previous demand upon the mortgagor for payment is not a condition precedent to the claim for relief sought by the mortgagee, the latter being entitled to relief notwithstanding the absence of such demand.

So held by the Supreme Court, reversing Gavan Duffy J.

Cur. adv. vult.

Gavan Duffy J. :—

This case raises a question of considerable practical importance to banks and to the legal profession—the question whether this Court has authority of its own motion and against the will of the plaintiffs to transfer to the Circuit Court a small mortgagee suit, without any application to transfer from a defendant who stays away. I have only heard one side and should have liked to have heard both, for I might have discovered the virtue of the plaintiffs' case if I had heard the defendant.

The plaintiffs' claim is to enforce by sale an equitable charge by deposit of title deeds of a house in Dublin; the poor law valuation of the house is admitted to be under £60—I was told that it was £24—and the debt is sworn at £301 10s. 0d., so that the case is well within the jurisdiction of the Circuit Court, to which I should like to transfer it for two practical reasons, first, because the Examiner has his hands full with his own highly important work and it is unfair to saddle him with work which ought to be done elsewhere, and, second, because in the normal course of proceedings no evidence of the valuation will emerge, so that there will be no reason whatever before the Taxing Master why he should not apply the High Court Scale to the prejudice of the...