The Local Registration of Title (Ireland) Act, 1891, and of Robert Phelan, A Registered Owner of Land

• Jurisdiction: Ireland
• Judge: Madden, J.
• Judgment Date: 11 December 1911
• Court: King's Bench Division (Ireland)
• Date: 11 December 1911

In the Matter of the Local Registration of Title (Ireland) Act, 1891, and of Robert Phelan, a registered Owner of Land.

Land Judge's Court.

Madden, J.

CASES

DETERMINITD 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.

1912.

Local Registration of Title (Ireland) Act, 1891 (54 & 55 Vict. c. 66), s. 21 — Registration of judgment mortgages — Duty of registering authority.

The Registrar of Titles acting pursuant to the Local Registration of Title (Ireland) Act, 1891, is bound to accept the affidavit of a judgment creditor seeking to register a judgment against the interest of an owner of registered land, except only in a case in which the ownership of the lands as stated in the affidavit is, on the face of it, displaced by the register or other documentary evidence connected therewith.

A judgment creditor applied under the Local Registration of Title Act for the registration of a judgment as a burden against the interest of the registered owner of the lands. The registration was objected to by the registered owner on the ground that the lands had been purchased by him as an evicted tenant entitled to the protection afforded by section 11 (2) of the Evicted Tenants (Ireland) Act, 1907.

Held, that it was the duty of the Registrar in his ministerial capacity to enter the judgment as a burden on the lands without prejudice to the right of the registered owner to seek to remove the blot on the title by subsequent proceedings in manner provided by the rules made pursuant to the Local Registration of Title Act.

Appeal from an order of the Registrar of Titles. Robert Phelan was a statutory tenant of the holding of Ballyboy, consisting of 100 acres, prior to April, 1907, when he was evicted therefrom for non-payment of rent. Proceedings were taken under the Evicted Tenants Act, 1907, for the compulsory acquisition of Farraleigh and other evicted lands on the Fairholme estates. On 12th November, 1908, Farraleigh was substituted for Ballyboy by order of the Estates Commissioners, and vested in Robert Phelan on 12th November, 1908. On 5th May, 1909, Robert Phelan was registered as owner of the lands. On 22nd February, 1911, a judgment was recovered in the King's Bench Division of the High Court of Justice in Ireland, at the suit of the National Bank, Limited, against Robert Phelan, for the sum of £564 16s. On 28th July, 1911, the Registrar of Titles made an order to the effect that an affidavit of the said judgment be entered as a burden on the said registered lands. The Registrar of Titles in his judgment expressed the view that it would be his duty to register the judgment mortgage, even if the evicted tenant were otherwise entitled to the protection afforded by section 11 (2) of the Evicted Tenants Act.

Robert Phelan appealed against the said order, on the grounds that he was an evicted tenant under the Land Purchase Acts, and that his holding of Farraleigh was a parcel of land purchased by him within the meaning of section 11 of the Evicted Tenants Act.

W. Gibson for the appellant.

Swayne for the National Bank, Limited.

Madden, J.:—

This case raises an important question as to...