Duff v Devlin
| Jurisdiction | Northern Ireland |
| Judgment Date | 04 February 1924 |
| Date | 04 February 1924 |
| Court | Court of Appeal (Northern Ireland) |
Appeal. (N. I.)
Mortgage - Sale - Suit by puisne mortgagee - Parties - Prior mortgagee not a party - Chancery (Ireland) Act, 1867 (30 & 31 Vict. c. 44), sect. 66,rule 9 - County Courts (Ireland) Orders, 1890, Order 18, rules 21 and 22.
Case Stated for the opinion of His Majesty's Court of Appeal in Northern Ireland by Brown J. from the County of Tyrone Summer Assizes in July, 1923.
The case stated set out the facts as follows:—
This case came before me, sitting as Judge of Assize at Omagh, Co. Tyrone, in July, 1923, upon an appeal by the Tyrone Loan Company, Limited, and Thomas Pattleton, the liquidator of said company, from an order pronounced by His Honor the County Court Judge of Tyrone in an equity suit setting aside the sale of a farm of land in Ardain, Co. Tyrone, which was sold at Moneymore, in the County of Londonderry, on the 21st day of April, 1923, at the instance of the Tyrone Loan Company, Ltd., and Thomas Pattleton, the liquidator of the said company, to Peter Campbell, of Sessia, Co. Tyrone, for the sum of £700. The appeal was then partly heard at Omagh, adjourned for further hearing to Belfast, and re-heard in Belfast on the 27th July, 1923.
The following facts were proved or admitted:—
The above-named defendant, Peter Devlin (Ogg), holds a farm containing nineteen acres, situate at Ardain, Co. Tyrone, in the Quarter Sessions Division of Dungannon. The annual value of said farm is £14. The above-named plaintiff obtained judgment in the Supreme Court of Judicature (Northern Ireland) against the said Peter Devlin (Ogg) for the sum of £52 15s. 5d. debt and £8 2s. 9d. costs on the 4th day of January, 1922, and registered said judgment as a mortgage against the defendant's said farm on 5th January, 1922. The plaintiff issued an equity civil bill against the said defendant to realize the amount of his judgment mortgage, and obtained a primary decree on the 10th
day of January, 1923, which directed the Clerk of the Crown and Peace of said county to hold an inquiry as to incumbrances, their priorities, and what was due to the plaintiff and other incumbrancers respectively. And it also directed that upon defendant paying into Court what should be certified to be due to the said incumbrancers, together with costs and interest, within three months after the Clerk of the Crown and Peace should have presented his certificate, the said incumbrancers should reconvey said mortgages to defendant, Peter Devlin (Ogg); but in default of the defendant paying into Court such certified sum, it was ordered that the said lands and premises should be sold by public auction for the discharge of the incumbrances affecting same, subject to the approval of the Court, and that the plaintiff's solicitor should have carriage of the sale, &c.On or about the 10th day of April, 1923, the said farm was advertised for sale by Messrs. Venables & Byers, of Cookstown, Co. Tyrone, solicitors for the Tyrone Loan Company, at Moneymore, in the County of Londonderry.
On the 14th day of April, 1923, James Duff, solicitor for William Duff, the plaintiff in said suit, sent a letter and notice through the post to Messrs. Bear & M'Keown, the auctioneers, cautioning them against selling said farm, as a primary decree had been granted to the said plaintiff to realize the amount of his judgment mortgage registered against the premises advertised by them for sale. On the 16th April, 1923, a similar notice was similarly sent to Messrs. Venables & Byers.
By letter dated the 16th day of April, 1923, Messrs. Venables & Byers stated they were acting on behalf of the Tyrone Loan Company, Limited, the first mortgagees of the property; that their clients were not parties to the suit, and that they could not see they were in any way bound by said decree.
On the 21st April, 1923, Messrs. Venables & Byers put up said farm for sale by public auction, and sold same to Peter Campbell, of Sessia, for £700 and auction fees.
On the 28th April, 1923, advertisements were issued in a local paper by the Clerk of the Crown and...
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Dolan v Murphy
...power of sale of the Land Commission was unaffected, and the order of the Circuit Court Judge must be discharged. Duff v. DevlinIR, [1924] 1 I. R. 56, applied. H. C., I. F. S., Dolan and Murphy Statutory prior right of, as chargeants - Mortgage of vested holding - Priority as between mortga......