The Estate of J. C. Hurley, Owner and Petitioner

• Jurisdiction: Ireland
• Court: Court of Appeal in Chancery (Ireland)
• Judge: Monroe, J.
• Judgment Date: 02 March 1894
• Year: 1894

In the Matter of the Estate of J. C. Hurley, Owner and Petitioner.

In the Matter of the Estate of F. E. Biddulph, Owner; The Provincial Bank of Ireland (Limited), Petitioners.

Monroe, J.

CASES

DETERMINED BY

THE CHANCERY AND PROBATE DIVISIONS

OF

THE HIGH COURT OF JUSTICE IN IRELAND,

AND BY

THE COURT OF BANKRUPTCY IN IRELAND,

AND ON APPEAL THEREPROM IN

THE COURT OF APPEAL.

1894.

Equitable mortgage — Vagueness — Demand — Registration — Affidavit of execution by mortgagee only — 6 Anne, c. 2.

1. Agreement by A with C, as follows:—“In case I fail to pay you any promissory note or bill of exchange of mine, when due, I agree to execute to you a mortgage on all my houses and lands, to secure to you the payment of all sums of money you may advance me on my promissory notes or bills of exchange, with interest, till paid, at such rate as may be provided by such promissory note or bill of exchange”:—

Held, to create a valid equitable mortgage on lands, the property of A at the time of the agreement, for the amount of notes or bills remaining unpaid on maturity.

2. Agreement by B with C, as follows:—“In consideration of the advance this day made by you to me, I hereby agree that in case I fail to pay you any promissory note or bill of exchange of mine when due, I shall, upon demand, execute to you a mortgage on all my houses and lands, to secure to you the payment of all sums advanced, or to be advanced, by you to me on my promissory notes or bills of exchange, with interest, till paid, at such rate as may, in each case, be provided by such promissory notes or bills of exchange”:—

Held, to create, without any demand, a valid equitable mortgage on lands, the property of B at the time of the agreement, for the amount of notes or bills unpaid at maturity, the words “on demand” having reference to the execution of a legal mortgage.

3. Held, following Jack d. Rennick v. Armstrong (1 H. & B. 727) and In re Stephens' Estate (Ir. R. 10 Eq. 282), that registration of a mortgage upon an affidavit verifying the execution of the instrument by the mortgagee only is defective.

Motions to settle schedule of priorities.

In Hurley'sCase a claim was filed by Thomas Joyce to be put upon the schedule on foot of an alleged equitable mortgage of which the following is a copy:—

To THOMAS JOYCE, 121, Stephen's-green, Dublin, Banker.

In case I fail to pay you any promissory note or bill of exchange of mine when due, I agree to execute to you a mortgage on all my houses and lands, and all future interest in houses or lands I may acquire, to secure to you the payment of all sums of money you may advance to me on my promissory notes or bills of exchange or otherwise, with interest, till paid, at such rate as may be provided by such promissory note, bill of exchange, or otherwise, such to be a collateral security, and without prejudice to your right to sue me for all such moneys and interest.

Dated 2nd January, 1891.

J. C. Hurley, J.P.,

Waterbeach Vicarage, Cambridge.

Glenduff, Tralee, Co. Kerry.

I agree to the above.

Thomas Joyce.

The execution of the agreement and memorial by Thomas Joyce was witnessed by Henry Duffin and Arthur Eustace, and the instrument was registered in the Registry of Deeds office on the 6th January, 1891, upon the affidavit of Arthur Eustace, verifying the execution of the agreement and memorial by Thomas Joyce, but the execution by Hurley, the owner of the lands, was not verified for the purpose of such registration.

Dr. Scalfell and Miss Mitchell, incumbrancers on the lands under deeds, registered, respectively, on the 6th April, 1891, and 28th December, 1893, and who, admittedly, had not notice of Mr. Joyce's charge, objected to his being placed in priority to them.

Graves Cathrew, for Dr. Scalfell; and The Right Hon. John Atkinson, Q. C., for Miss Mitchell:—

The instrument which the claim' seeks to have placed on the schedule is neither a charge on land, nor a conveyance of land, and is incapable of being registered: Cleary v. Fitzgerald (1). It purports to charge all lands and houses the debtor might have anywhere. For the purpose of being placed on the registry, though it may not be necessary that the barony or parish where

the lands are situated should be mentioned in the deed, yet it is essential that the county should be stated: Butler v. Gilbert (1). Otherwise, where is search to be made? In Dillon v. Costello (2) the county was stated in the deed. The execution of the document by the grantor must be attested to admit of its being put upon the registry. This document amounts merely to an undertaking to execute a mortgage in events which might never occur: Re Monsell (3). The registration on an affidavit verifying Joyce's execution only is defective: Jack d. Rennick v. Armstrong (4); In re Stephens' Estate (5).

Wylie, for Mr. Joyce:—

Any agreement to execute a legal mortgage operates in equity as a charge on the lands. That it is conditional in form is immaterial. A legal mortgage in the same words would be effectual to secure the amounts of the promissory notes. Mr. Justice Madden in his treatise on the registration of deeds, states at page 68 (note), that doubt has been thrown on the proposition that the proof of the execution of the deed by the grantor is essential to a good registration. The final and effective signature to the document is that of Joyce. Until he signed, nothing was binding. Apart from the Registry Act a covenant like this creates a good charge as between the parties: Cleary v. Fitzgerald (6). As to the barony and county not being stated: see Gardiner v. Blesinton (7); Madden on Registration of Deeds, 62. The practice has been to admit documents of this kind to the registry.

In Biddulph'sCase the Provincial Bank of Ireland mortgagees by registered deed claimed priority over two securities held by Mr. Joyce of earlier date.

One of these securities, dated the 2nd August, 1890, was mutatis mutandis, similar to that given by Mr. Hurley (ante, p. 489). The second was dated the 24th March, 1891, and was as follows:—

Dated, 24th March, 1891.

To THOMAS JOYCE,

121, Stephen's-green, Dublin.

Banker.

In consideration of the advance this day made by you to me, I hereby agree that in case I fail to pay you any Promissory Note or Bill of Exchange of mine when due, I shall upon demand execute to you a Mortgage on all my Houses and Lands, and all future interest in Houses or Lands I may acquire, to secure to you the payment of all sums of money advanced or to be advanced by you to me on my Promissory Notes or Bills of Exchange, or otherwise, with interest, till paid at such rate as may in each case be provided by such Promissory Note, Bill of Exchange, or otherwise, such to be a Collateral Security, and without prejudice to your right to sue me for all such monies and interest. And I further agree, in case you have to mark judgment against me on foot of any Writ of Summons, issued to recover any of the monies above mentioned, you are to be entitled to interest on the money sought to be recovered under judgment, at the rate of sixty per cent, per annum, or such other rate as may in each case be provided by such Promissory Note, Bill of Exchange, or otherwise, instead of four per cent., and I authorize and agree to your issuing execution and levying for the money sought to be recovered under such judgment, and interest thereon at sixty per cent, per annum, or such other rate so as aforesaid provided by such Promissory Note, Bill of Exchange, or otherwise, from the date of said judgment till paid. And in the event of any such judgment being marked against me as aforesaid, I further promise and agree personally to secure, and upon demand to pay and make good to you such sum as may from time to time represent the difference between the interest on the money sought to be recovered under said judgment, calculated at the rate of four per cent, per annum, and the interest thereon calculated at the rate of sixty per cent, per annum, and I charge the amount of such sum as may from time to time represent such difference as aforesaid, on all my Houses and Lands, and all future interest in Houses and Lands I may acquire.

F. E. Biddulph,

St. Kilda, Parsonstown.

I agree to the above and foregoing agreement.

Thomas Joyce.

These instruments were respectively registered in the Registry of Deeds Office on the 6th August, 1890, and the 26th March, 1891, upon affidavits verifying the execution of them by Mr. Joyce only. Particulars as to the advances made by Mr. Joyce are detailed in the judgment of Mr. Justice Monroe, infra, p. 496, so far as material to the questions discussed.

Kenny, Q.C., and J. H. Moore, for the Provincial Bank:—

There are two questions for argument. First, was the registration valid? Secondly, were these agreements charges on the lands?

First, as to registration. The preamble of the 6 Anne, c. 2, is different from that of the 7 Anne, c. 20 (Middlesex Registration Act). The Irish Act was aimed at the prevention of forgery. The object of the English Act was merely to secure publicity. The cases here proceed on the principle that the execution of which proof is contemplated by the Act is the substantial execution which passes the property, viz. that of the grantor: Jack d. Rennick v. Armstrong (1); Reg. v. Registrar of Deeds in Middlesex (2); Sugden's Vendors and Purchasers (11th Ed.) c. 22, s. 4; In re Stephens' Estate (3). In Reg. v. Registrar of Deeds for the County of Middlesex (4) Lord Justice Bowen points out what the object of the Middlesex Registration Act was, and shows that the decision of the Court of Appeal in that case did not conflict with the Irish authorities. Downes, C.J., states expressly (1 H. & B. 731) that the “execution of the grant or conveyance” in s. 6 means “the execution by the person whose sole act...