Simmons v Montague

• Jurisdiction: Ireland
• Judgment Date: 12 March 1907
• Date: 12 March 1907
• Docket Number: (1904. No. 700.)
• Court: Chancery Division (Ireland)

Simmons

and

Montague.

M. R.

(1904. No. 700.)

CASES

DETERMINED BY

THE CHANCERY DIVISION

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE IRISH LAND COMMISSION,

AND ON APPEAL THEREFROM IN

THE COURT OF APPEAL.

1909.

Equitable mortgage — Deposit of title-deeds and map — Sale by Court — Mistake — Premises described on map not included in title-deeds — Agreement to charge all the interest of the mortgagor implied.

The owner of a hotel deposited, with a Bank, by way of equitable mortgage without writing, the title-deeds and a map of the hotel premises. The Bank transferred the equitable mortgage to S. by deed. The premises comprised in the deeds were sold by order of the Court in a suit brought by S. to raise the amount of the mortgage. On investigation of the title it appeared that part of the premises delineated on the map was not comprised in the deeds, and that the mortgagor had only a possessory title to it.

The Court held that there was an agreement by the mortgagor, evidenced by the documents, including the map, to charge all his interest in the hotel premises, the benefit of which passed to S., and, the purchaser being willing to take the part not comprised in the deeds without title, declared that that part was to be deemed included in the equitable mortgage, and directed a conveyance of the entire premises to be made to the purchaser.

Summons.

This was an application on behalf of the plaintiff to have an order for sale of July 27th, 1904, amended by reason of the following circumstances:—

The defendant, Joseph Montague, was the owner of a hotel in the town of Dungannon, and county of Tyrone, known as the Commercial Hotel. On or about February 9th, 1893, he deposited certain title-deeds and documents, including a map, with the Belfast Banking Company, Limited, by way of equitable mortgage to secure to the Bank all such sums as the Bank might advance to him on his current account, or might otherwise accrue due to them. There was no agreement in writing between the parties as to the equitable mortgage. The deeds and documents deposited with the Bank were as follows:— (1) Original conveyance, dated July 24th, 1858, from the Commissioners for the Sale of Incumbered Estates in Ireland to Michael Montague; (2) original deed of exchange and covenant, dated August 15th, 1872, The Right Honorable Thomas Granville Henry Stewart, Earl of Ranfurly, with Michael Montague; (3) copy lease of house and premises in 8 Market Square, Dungannon, dated December 9th, 1842, Letford M'Clelland to the Earl of Ranfurly; (4) copy letters of administration of the goods of Michael Montague, deceased, granted January 22nd, 1892, to Margaret Kelly; (5) map of premises in Market Square, Dungannon, in Montague v. Montague; (6) search against Michael Montague and another; (7) fire policy for £1800 in Sun Insurance Office, Number 554, 365; and (8) fire policy for £200 in Sun Insurance Office, Number 552,385.

By indenture, dated January 14th, 1897, and made between the Bank of the first part, the defendant, Joseph Montague, of the second part, and the plaintiff, John Simmons, a solicitor practising in the town of Dungannon, of the third part, after reciting that the said Joseph Montague on February 9th, 1893, deposited by verbal agreement with the Bank the title-deeds, evidences, and writings contained in the first schedule thereto annexed, relating to the hereditaments and premises in the second schedule thereto annexed, and that the sum of £473 2s. 2d. was due to the Bank on foot of the said equitable mortgage, the Bank, in consideration of the sum of £473 2s. 2d. paid to them by the plaintiff, as mortgagees assigned to the plaintiff the said sum of £473 2s. 2d. due to them on foot of the said equitable mortgage, together with the title-deeds, evidences, and writings mentioned in the first schedule to the said indenture, and all benefits arising from the said deposit, and all rights and benefits in relation thereto, but subject to such right or equity of redemption as existed in respect of the same. The deed contained a covenant by the said Joseph Montague to pay to the plaintiff the said sum of £473 2s. 2d., together with interest thereon half-yearly at the rate of 5¹/₂ per cent. per annum.

On the 19th July, 1904, the plaintiff instituted the present proceedings by summons, to have it declared that he was entitled to a charge of £473 2s. 2d., and £117 1s. 10d. interest thereon, on the lands and premises situate in Market Square and Thomas Street, in the town of Dungannon, known as the Commercial Hotel, and for a sale or receiver to raise the amount of such charge.

By order of the 27th July, 1904, it was declared that the sum secured by the said equitable mortgage, and the interest thereon, were well charged on the defendant's interest in the lands and premises set forth in the schedule thereto annexed, amounting to the sum of £590 4s. for principal and interest, with further interest and costs, and by the said order the said premises were ordered to be sold in default of payment as therein. The lands and premises were described in the schedule as follows:—

“All that tenement in Castle Street in the town of Dungannon and County of Tyrone, described as containing in the front 23 feet, and in the rear backwards 300 feet, as the same was formerly divided between Robert Johnston and James Leaford, bounded on the east by a tenement formerly in the possession of Dr. Kennedy, and on the west by a tenement...