Waters v Lloyd

• Jurisdiction: Ireland
• Judgment Date: 12 December 1910
• Date: 12 December 1910
• Court: Court of Appeal (Ireland)

In the Matter of the Estate of Catherine Lloyd, Deceased

Susanna M. Waters

and

Deborah Mary Lloyd (1).

Appeal.

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.

1911.

Mortgage — Acknowledgment — Statute of Limitations — 3 & 4 Wm. 4, c. 27, ss. 2, 40; 37 & 38 Vict. c. 57, ss. 1, 8.

A claim by a legal mortgagee for payment of principal and interest due on his mortgage, brought in in a suit for the administration of the real and personal estate of a deceased owner of the equity of redemption, is a proceeding to recover money secured by a mortgage charged upon or parable out of the land, within sect. 8 of the Real Property Limitation Act, 1874 (37 & 38 Vict. c. 57), and not an action or suit to recover the land, within sect. 1 of that Act, and consequently the mortgagee in such case can rely upon an acknowledgment of his right given in writing by the agent of the owner of the equity of redemption, as keeping alive a mortgage debt, which would otherwise have become statute-barred.

Appeal by the Scottish Amicable Life Assurance Society from an order of Barton, J., dated 8th November, 1910.

By an indenture of mortgage, dated the 5th day of May, 1865, Horatio Michael Lloyd mortgaged certain freehold lands in the county of Tipperary to the appellants, the Scottish Amicable Life Assurance Society, to secure the repayment of £1200 with interest at £6 per cent. per annum. The equity of redemption in the said lands afterwards became vested in Catherine Lloyd, who, in the year 1877, paid to the Society the sum of £200 on account of the said principal sum of £1200. No interest on the said mortgage was paid subsequent to the 5th day of May, 1894; but on the 25th day of March, 1898, a letter, which amounted to an acknowledgment of the mortgage debt within section 8 of 37 & 38 vict. c. 57, was written by an agent of Catherine Lloyd to the Society. The present action was

instituted by a creditor of the said Catherine Lloyd (then deceased) in the year 1909, to administer her real and personal estate, and the Society having claimed to rank as incumbrancers on the real estate in respect of their mortgage, the chief clerk on the 9th day of July, 1910, filed his certificate in the action, whereby (inter alia) it was found that there was due to the Society on foot of the said mortgage, and as an incumbrance on the real estate of the deceased, the sum of £1000 for principal, together with £431 6s. 6d. for interest thereon from the 14th day of December, 1902, to the date of the certificate, and £2 for costs of claim. By an order of Mr. Justice Barton, dated the 8th day of November, 1910, and made on the application of the defendant in the action to vary the chief clerk's certificate, it was ordered that the said certificate should be varied by disallowing the said debt certified to be due to the Society, but that the Society should be at liberty to send in particulars of any claim which they might be advised to make against the personal estate of the deceased, and to apply to the chief clerk for a separate certificate upon any such claim. From this order the Society now appealed.

Ronan, K.C., and H. Wilson, K.C., for the appellants:—

We contend that the claim of the appellants on foot of their mortgage was not an “action or suit to recover any land” within section 1 of 37 & 38 Vict. c. 57, but merely a proceeding to recover the moneys secured by the mortgage within section 8 of that Act; and consequently we are entitled to rely on the acknowledgment which was admittedly given, as keeping the debt alive.

No doubt a foreclosure suit is one to recover the land itself, and therefore comes within section 1: Wrixon v. Vize (1); Heath v. Pugh (2); Harlock v. Ashberry (3); but the remedy of foreclosure, which is unknown in Ireland, is essentially different from that sought by the appellants in the present case, viz. payment of their debt out of the proceeds of the sale of the mortgaged lands:

Bruce v. Brophy (1); Sinton v. Dooley (2). Section 25 of the Conveyancing and Law of Property Act, 1881, enabling a sale of mortgaged property to be had in an action for foreclosure, was expressly not extended to Ireland, the Legislature thereby recognizing the distinction in the practice existing in the two countries: compare also English Order LV. (5A) with the corresponding Irish Order LV. (7), from which relief by foreclosure is expressly excluded. In Stinson's Estate (3), Monroe, J., held that a petition for sale in the Land Judge's Court by an incumbrancer on land is a proceeding to recover money charged on the land within section 8: In re Matthew's Estate, M'Caul, Petitioner (4); Beamish v. Whitney (5). The distinction between the remedy of a mortgagee against the mortgaged lands and his personal remedy is clearly pointed out by Romer, J., in Kibble v. Fair-thorne (6). [They also referred to Averall v. Wade (7); Hughes v. Kelly (8); Conlan's Estate (9); Irish Land Commission v. Davies (10).]

S. L. Brown, K.C., Carrigan, K.C., and Poole, for the respondent:—

We submit that the order appealed from was right in principle and should not be disturbed. The appellants rely on the acknowledgment given by the agent of the owner of the equity of redemption, but this case comes within section 1 of 37 & 38 Vict. c. 57, and not section 8. The latter section cannot be relied upon, as there was here no “charge” upon or payable out of the lands, which is sought to be recovered, the charge having become barred by non-payment of any part of the principal or interest for upwards of twelve years. This is a proceeding in the nature of a suit for the recovery of the land itself; see judgment of Porter, M.R., in Barcroft v. Murphy (11);

Shea v. Moore (1), and there is no real distinction between this attempt to raise the mortgage debt out of the lands (the right of the mortgagees to which is absolutely extinguished by section 34 of 3 & 4 Wm. 4, c. 27) and a foreclosure suit, which admittedly is one to recover the lands themselves: Heath v. Pugh (2). In the one case the lands are delivered to the purchaser through the Court, in the other to the mortgagee, but in either case it is the lands that are made available for the payment of the mortgage debt. “The Irish practice” (it is laid down in Burroughs & Gresson, p. 31), “which appears much more conducive to the interest both of the debtor and creditor, is, to decree, not a...