The Estate of Frances Cecilia Archer

• Jurisdiction: Ireland
• Judge: Wylie, J.
• Judgment Date: 18 June 1914
• Court: Chancery Division (Ireland)
• Date: 18 June 1914

In the Matter of the Estate of Frances Cecilia Archer.

Wylie, 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.

1914.

Mortgage — Successive charges on both or one of two funds — Deficiency of funds — Notice — Marshalling.

Held, that C. was entitled to marshal B.'s first charge, and to have so much of it paid out of fund “A” as would leave sufficient of fund “B” to pay his own second charge in full, notwithstanding the fact that L.'s puisne charge would be thereby prejudiced.

Question arising on the ruling of the Final Schedule of Incumbrances.

The vendor was entitled as tenant for life to the estate sold in this matter under the Land Purchase Acts. The proceedings for sale were commenced in 1908. By indenture dated the 22nd October, 1910, the vendor, and Arthur M. Archer, her husband, assigned to Henry Y. Barker, and George H. Rogerson, first, the sum payable at claim “A” on the final schedule, i.e. the sum equivalent to arrears of rent payable under sect. 24, sub-s. 8, of the Irish Land Act, 1903, and, secondly, the bonus, to secure repayment of £350, with interest. The amount vouched as due on foot thereof was £411 19s. 8d.

By indenture dated the 22nd March, 1911, the vendor and the said Arthur M. Archer assigned to James Cooper the bonus only, to secure repayment of £1350 and interest. The amount vouched as due on foot thereof was £1562 11s. 11d.

By indenture dated the 27th April, 1912, the vendor and the said Arthur M. Archer further charged the premises comprised in the said mortgage of the 22nd October, 1910, with repayment to the said Henry Y. Barker and George H. Rogerson of £200 and interest. The amount vouched as due on foot thereof was £221 5s. 10d.

By indenture, dated the 20th January, 1914, the vendor charged all her interest in the sum payable at claim “A” on the final schedule with repayment to Mary La Touche of any sum she might be called upon to pay on foot of a guarantee given by her to the Hibernian Bank. The amount due on foot thereof was not yet ascertained. In each case the vendor was expressed to convey as “beneficial owner.”

In the Land Commission register of charges on the bonus, the deeds of the 22nd October, 1910, and the 27th April, 1912, were entered as affecting the purchase-money and bonus; the deed of 22nd March, 1911, was entered as affecting the bonus; and the deed of the 20th January, 1914, as affecting the sum payable under sect. 24, sub-s. 8, of the Act of 1903.

The sum available for payment at claim “A” on the final schedule was £625 14s. 6d. The bonus amounted to £1,689 9s. 7d. It appeared that if the amount due on foot of the mortgage of the 22nd October, 1910, were paid rateably out of the sum available for payment at claim “A” and the bonus, the residue of the bonus would be insufficient to pay the claim in full of James Cooper under the mortgage of 22nd March, 1911. The question of the right of the latter to marshal accordingly arose.

A. K. Overend, for Miss La Touche:—

The first mortgage of the 22nd October, 1910, should be paid rateably out of the sum payable at claim A. on the final schedule, and the bonus. The second mortgagee will not be allowed to marshal the securities in the prior mortgage by throwing the amount thereby secured on the sum payable at claim “A,” where the result will be to...