Wallace v Fogarty

 
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Supreme Court.

(1925. No. 10,603.)
Wallace v. Fogarty.
WILLIAM POULTER WALLACE
Plaintiff
and
WILLIAM FOGARTY
Defendant.

Mortgage - Whether Increase of Rent and Mortgage Interest (Restrictions) Act, 1923, applicable thereto - Act limited to houses which have been let - Mortgage provisions of Act similarly limited - Mortgage of house not let - Mortgagor, owner in fee, in occupation - Mortgage not within Act - "House or part of a house let as a separate dwelling" - Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (No. 19 of 1923), sect. 3, sub-sects. 1, 7, and 8; sect. 9 (a).

Meredith J.:

This was an application to raise money due on a mortgage to which the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (No. 19 of 1923), applies. A defence is raised under sect. 9 of that Act; but the plaintiff alleges that condition (a) of that section has been broken, since interest fell into arrear about a year ago, and was in arrear for more than twenty-one days. Then interest was paid and accepted, and further interest has been paid and accepted since. When this summons was issued, there was, and at the present time there is, no interest at all in arrear.

The decision in Evans v. Horner(1) was, on its facts, a different case from the present one. In that case there was interest due for twenty-one days and more at the date when the summons was issued; interest was not paid until two days later, so that condition (a) of the corresponding section (sect. 7) in the English Increase of Rent and Mortgage Interest (Restrictions) Act, 1920 (10 & 11 Geo. 5, c. 17), was broken when the summons was issued.

I cannot take the view that sect. 9 simply creates one single continuous period of suspension of the mortgagee's rights, so that, if at any moment after the passing of the Actfor that, I

suppose, would be the date of the commencement of the period, although sect. 9 is only a re-enactmentany one of the conditions (a). (b), or (c) is broken, the protection of the section is thenceforth irretrievably lost. That seems to me a very strained construction, and involves reading condition (a) as if it were"interest at the rate permitted under this Act is paid, and has not been more than twenty-one days in arrear since the passing of this Act," and the other conditions similarly. It seems to me that the true construction is that the mortgagee cannot call in his mortgage during such time or times, or, in other words, so long as conditions (a), (b), and (c)...

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