O'Sullivan v Loughnan

• Jurisdiction: Ireland
• Judgment Date: 29 October 1927
• Date: 29 October 1927
• Court: Supreme Court (Irish Free State)

S. C.,

O'Sullivan

and

Loughnan

Sufficiency - Mortgage - Security for future advances - Unlimited amount - Security "available for such an amount only as the ad valorem duty impressed thereon extends to cover" - Collateral security - Alteration of stamp duty - Stamp Act, 1891 (54 55 Vict., c. 39), ss. 1, 11, 15 (1) and (2), 86, 87, 88 (2), Sch. I. - Revenue Act, 1903 (3 Edw. VII., c. 46), s. 7.

Section 15 (1) of the Stamp Act, 1891, provides that, save where other express provision is made in the Act, any unstamped or insufficiently stamped instrument may be stamped after execution on payment of the unpaid duty and a penalty therein prescribed. Sub-section 2 requires that an instrument (unless written upon duly stamped material) shall be duly stamped with the proper ad valorem duty before the expiration of 30 days after it is first executed (except in certain cases). Section 88 (1) enacts: "A security for the payment or repayment of money to be lent, advanced, or paid, or which may become due upon an account current, either with or without money previously due, is to be charged, where the total amount secured or to be ultimately recoverable is in any way limited, with the same duty as a security for the amount so limited." Subsection 2: "Where such total amount is unlimited, the security is to be available for such an amount only as the ad valorem duty impressed thereon extends to cover, but where any advance or loan is made in excess of the amount covered by that duty the security shall for the purpose of stamp duty be deemed to be a new and separate instrument, bearing date on the day on which the advance or loan is made." A defendant in proceedings which had been instituted against him for an account of the moneys due on certain mortgages and for the sale of the lands comprised therein (the mortgages being for unlimited...