THE ESTATE of CHARLES AMBROSE, OWNER; EDWARD A. HARNEY and ANOTHER, PETITIONERS. [Ch. Div.]

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 26 June 1913
• Court: Chancery Division (Ireland)
• Date: 26 June 1913

In the Matter of the Estate of Charles ambrose, Owner;

Edward A. Harney and Another, Petitioners.

Ross, J.

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.

1913.

Mortgage — Transfer — Transferee for value without notice — Negligence of mortgagor — Fraud of mortgagee — Equities as between mortgagor and transferee — Two innocent parties — Which must suffer from fraud of third party? — Estoppel.

Held, that in consequence of A. having left the mortgage of 1897 outstanding in the hands of P., it was not open to A. to say that the whole amount secured by the mortgage of 1905 was not due.

Motion by petitioners to make conditional order for sale absolute, notwithstanding cause shown.

On 17th December, 1897, Charles Ambrose conveyed to William Pope portion of the lands of Sporthouse, containing 32a. 0r. 26p., held by him on lease, and also another portion of the same lands, containing 45a. 3r. 18p., held by him as tenant-purchaser from, and subject to the payment of an annuity to, the Irish Land Commission, by way of mortgage to secure a sum of £600; and the said mortgage was duly registered in the Registry of Deeds Office on the 24th December, 1897.

The holding of 45a. 3r. 18p. having in the year 1903 been sold by the Land Commission by reason of the tenant-purchaser failing to pay the purchase annuity, and the only security remaining subject to the mortgage being the 32 acres portion, William Pope, in the year 1905, demanded additional security; whereupon Charles Ambrose on the 7th November, 1905, executed a mortgage in favour of William Pope of the lands of Tinvancoosh, county Kilkenny, part of the lands of Sporthouse, county Waterford, and certain house property in the city of Waterford, to secure the sum of £917 10s. 5d., with interest at 5 per cent., made up of the said sum of £600, and the further sum of £317 10s. 5d., advanced by Pope to Ambrose. The old mortgage for £600 was not got up by Ambrose or recited in the new mortgage, as Ambrose believed it to be unregistered, and Pope alleged that it had been lost or mislaid.

On the 21st June, 1907, Pope assigned by deed to himself and to Edward A. Harney, one of the petitioners, the mortgage for £917 10s. 5d. by way of sub-mortgage to secure the sum of £1500 and interest. The transfer was made to Pope and Harney as trustees of a trust fund under circumstances which constituted them transferees for value of the mortgage. The principal sum of £917 10s. 5d. was then due on foot of the mortgage of 1905, and Harney had no notice of the mortgage of...