The Estate of Mathew Flood, Owner; Stanley Carr Joyce, Petitioner

• Jurisdiction: Ireland
• Judgment Date: 24 June 1881
• Date: 24 June 1881
• Court: Chancery Division (Ireland)

Appeal.

Before May, C. J., and DEASY and FITZ GIBBON, L.JJ.

IN THE MATTER OF THE ESTATE OF MATHEW FLOOD,

OWNER;

STANLEY CARR JOYCE,

PETITIONER

Eyre v. M'dowellENR 9 H. L. C. 619, 646.

Fowler v. Fowler 16 Ir. Ch. R. 507.

Hawkins v. Gathercole 6 D. M. & G. 1.

Russell v. MooreUNK 8 L. R. Ir. 318.

Croft v. LumleyENR 6 H. L. C. 642, 672.

Ex parte Domvile, in re Fowler 14 Ir. Ch. R. 19.

In re Quirke's EstateUNK 3 L. R. Ir. 23.

"Bright clauses" Annuity charged in favour of Commissioners of Public Works Petition for sale of lands by judgment mortgagee

IN THE MATTER OF THE ESTATE OF MATHEW FLOOD, Appeal. OWNER ; STANLEY CARR JOYCE, PETITIONER (1). 1881. Landlord and Tenant (Ireland.) Acts, 1870 and 1872 (33 34 Vict. c. 46, and 35 & 36 Vict. c. 32)-" Bright clauses"- Annuity charged in favour of Commissioners of Public Works-Petition for sale of lands by judgment mortgagee-Order to sell subject to annuity-21 (3, 22 Vict. c. 72, s. 54. Where a judgment by default was obtained against A, and registered as a mortgage against lands which he had purchased, and which were subject to a statutory annuity in favour of the Commissioners of Public Works, to secure an advance made by them to enable him to effect the purchase under the " Bright clauses" of the Landlord and Tenant (Ireland) Aet, 1870, and the Amending Act of 1872 (35 & 36 Vict. c. 32) : Held (affirming the decision of Ormsby, J.), that the judgment mortgagee was entitled, without the consent of the Commissioners, to proceed. to a sale of the lands, but subject to the annuity, and to all powers and remedies for securing and enforcing its payment. APPEAL by the Commissioners of Public Works in Ireland from that part of the order of Judge Ormsby made in this Matter on the 31st March, 1881, whereby it was ordered " that the Petitioner be at liberty to proceed to a sale of the lands and premises in the absolute order for sale mentioned, such sale to be made subject to an annuity of 21 12s., created by a certain deed of conveyance c)14 the 16th day of December, 1873, and to all powers and reÂÂmedies for the securing and enforcing payment thereof, created by the said deed or otherwise." It appeared that, in the year 1873, Thomas Beale Browne, who was an owner in fee-simple, sold the lands of Inchinsquillib, county Tipperary, containing 240 acres (statute measure), to Mathew Flood, who had been in possession as tenant from year to year. 'The purchase-money was 950, of which the CommisÂÂsioners of Public works agreed, under the provisions of the 33 & 34 Vict. c. 46, s. 44, and 35 & 36 Vict. c. 32, to advance 432. Thereupon a deed, dated the 16th December, 1873, was executed (1) Before MAY, C. J., and DEASY and FITZ GIBBON, ,L.JJ. 046 LAW REPORTS (IRELAND), [L. lt. I. Appeal. between T. B. Browne, of the first part, Mathew Flood, of the 1881. second part, the Commissioners, of the third part, and Edward. Hornsby, their secretary, of the fourth part, whereby the lands were conveyed to Edward Hornsby and his heirs, to the uses therein mentioned ; which were in substance to secure payment to the Commissioners of a rentcharge of 21 12s., for a period of thirty-five years, and subject thereto to the use of the purchaser, his heirs and licensed assigns. Flood afterwards became indebted to the Petitioner Stanley Carr Joyce, who, on the 21st November, 1879, obtained a judgment by default against him in. the ExcheÂÂquer Division for 10614s. lid., which the Petitioner subsequently registered as a mortgage against the lands, and on the 16th January, 1880, filed his petition for sale. The further proceedings in. the Matter appear sufficiently from the judgment of Judge ORMSBY, infra (1). (1) ORMSBY, J.:-[March 31,1881.] This case of Flood's Estate comes before me on a motion on the part of the petitioner that, notwithstandÂÂing the objection of the Board of Works to give an absolute and unÂÂqualified consent to the sale of the premises ordered to be sold in this Matter, such sale may take place, having regard to the nature of the security held by the petitioner, being a judgment registered as a mortgage. The motion came before me a few days ago, when I made an order that the sale of the premises be not proÂÂceeded with until an absolute consent was obtained from the Commissioners of Public Works to such sale, but reserving leave to the petitioner to apply to the Court, on notice to the Commissioners, for permission to proÂÂceed to a sale, regard being had to the nature of his security. The petiÂÂtion was presented by a judgment mortgagee, who states that he reÂÂcovered judgment against Mathew Flood, the owner, for 101 8s. 11d.,besides 5 6s. for costs, and that on the 25th of November, 1878, the judgÂÂment was registered as a mortgage, in pursuance of the provisions of the Judgment Mortgage Act. In ruling on the title I gave a direction in the following terms :-" See that the conÂÂsent of the Commissioners of Public Works is...