Wallace v Fogarty

• Jurisdiction: Ireland
• Court: Supreme Court (Irish Free State)
• Judgment Date: 01 January 1926
• Docket Number: (1925. No. 10,603.)
• Date: 01 January 1926

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).

Originating Summons.

The plaintiff applied for a declaration that the sum of £650 and interest thereon, secured by an indenture of mortgage, dated the 11th of May, 1922, were well charged upon certain lands in the Barony of Skerrin and County of Tipperary, comprised in the mortgage, and for an order for sale of the lands to enforce the amount due upon the mortgage. On the 12th of November, 1924, half a year's interest had fallen into arrear; on the 5th of December following, plaintiff had served notice on defendant under the Conveyancing Act, 1881, sect. 20, sub-sect. 1, requiring payment of the mortgage money; on the 8th of December the interest in arrear was paid; and on the 16th of December, 1924, plaintiff's solicitors sent a receipt for the interest; and the next half year's interest, due on the 11th of May, 1925, was paid punctually. On the 28th of July, 1925, this summons was issued. The valuation of the mortgaged property was £29 15s., of which £3 10s. represented buildings. The correspondence between the plaintiff and defendant was referred to in the affidavit in support of the application.

The plaintiff appealed to the Supreme Court (1).

Sect. 3, sub-sect. 7, of the Increase of Rent and Mortgage Interest (Restrictions) Act, 1923 (No. 19 of 1923), provides: "Subject to the provisions of this Act, this Act shall apply to every mortgage where the mortgaged property consists of or comprises one or more dwelling-houses to which this Act applies, or any interest therein . . ."

Held by the Supreme Court, that the provisions of the Act relating to the restriction of rent only apply as between landlord and tenant, and consequently they are applicable only to a house which is let, and the provisions of the Act relating to mortgages are directed to the same subject-matter.

Accordingly a mortgage of a house by an owner in fee in occupation thereof—the house not having been proved to have been at any time let—is not a mortgage to which the sub-section applies.

Decision of Meredith J., dismissing the mortgagee's application for an order for sale on the ground that sect. 9 of the Act applied to the mortgage, reversed.

Per Kennedy C.J.:—Sect. 3. sub-sect. 7, relates only to a house which is the...