THE OCEAN ACCIDENT and GUARANTEE CORPORATION, Ltd, and HEWITT v COLLUM. [Ch. Div.]

• Jurisdiction: Ireland
• Judge: Ross, J.
• Judgment Date: 21 June 1912
• Court: Chancery Division (Ireland)
• Date: 21 June 1912
• Docket Number: (1910. No. 896.)

The Ocean Accident and Guarantee Corporation, Limited, and Hewitt

and

Collum.

Ross, J.

(1910. No. 896.)

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 — Conveyance of portion of mortgaged lands “free from incumbrances” — Right of indemnity — Notice — Indemnifying lands mortgaged without notice — Right of contribution.

Held, that the mortgagee of lands B was entitled to make lands A contribute rateably with lands B towards the payment of the superior charges.

Trial Of Action.

The action was brought by the plaintiffs to compel the defendant to contribute rateably towards the payment of certain superior charges.

The facts sufficiently appear in the judgment of Ross, J. The title to the lands is fully set out in the last preceding reported case at page 227 of the present volume of reports.

Serjeant Matheson, K.C. (with him, H. D. Conner, K.C., and Leet), for the plaintiffs:—

The conveyance to the defendant's predecessor in title contained a covenant that the lands were “free from incumbrances.” That amounted to an indemnity, and the purchaser was entitled to throw the charges on the other lands in the hands of the grantor. Five days subsequent to the date of that conveyance the grantor mortgaged all his lands to the plaintiff's predecessors in title without notice of the prior conveyance. The purchaser for value without notice is free from the equity affecting his grantor, and henceforth all the lands must contribute rateably to the paramount charges: Averall v. Wade (1); Tighe v. Dolphin (2); In re Roche's Estate (3); Stronge v. Hawkes (4); M'Carthy v. M'Cartie (5).

G. W. Walker, K.C. (with him, E. S. Murphy), for the defendant: —

It is admitted that in the hands of the original grantor the lands are liable to indemnify: Averall v. Wade (1). Stronge v. Hawkes (4) suggests a step further. Where a judgment affects lands a prior purchaser is entitled to throw the judgment on later purchasers: Hartley v. O'Flaherty (6); Aicken v. Macklin (7); Ker v. Ker (8). Where an owner mortgaged lands, and afterwards sold a moiety to a purchaser with a covenant for further assurance, it was held that the unsold moiety must bear the mortgage: Farrington v. Forrester (9).

Although registry is not notice, a purchase of the legal estate for valuable consideration without notice is no defence to a suit for the specific performance of an equitable contract contained in a prior registered instrument: Hamilton v. Lyster (10); Madden on Registration, p. 221. An equity which is duly registered is effectual to bind property which may be the subject of grants made at a time subsequent to such registration: Mill v. Hill (11). We rely on the priority given to us by our prior registration under the Registry Acts: Thompson v. Simpson (12); M'Carthy v. M'Cartie (5). We also rely on the Statutes of Limitations, 3 & 4 Wm. 4, c. 27, sect. 42, and 16 & 17 Vict. c. 113, sect. 20.

E. S. Murphy: The assignee of an equity of redemption takes it subject to equities: Harter v. Colman (1). Our right of indemnity was an equity affecting what a subsequent purchaser took. Notice of a memorial is notice of the covenants contained in the deeds: Kettlewell v. Watson (2). A purchaser is bound to inquire for and examine deeds and documents, memorials of which are registered: Madden on Registration, p. 223.

H. D. Conner, K.C., in reply:—

There is a fallacy in the arguments as to registration. Registration gives priority only where the conveyances deal with the same lands. Our rights as purchaser for value without notice are not taken away. The plaintiffs' deed takes priority over the defendant's equity, because his equity was never...