Eyre v McDowell
| Jurisdiction | England & Wales |
| Judgment Date | 17 July 1861 |
| Date | 17 July 1861 |
| Court | House of Lords |
English Reports Citation: 11 E.R. 871
House of Lords
Mews' Dig. viii. 515; ix. 1448. On point (i.) as to equitable mortgage, cf. Ashton v. Corrigan, 1871, L.R. 13 Eq. 76; Hermann v. Hodges, 1873, L.R. 16 Eq. 18; (ii.) as to interest taken by execution creditor, cited in Badeley v. Consolidated Bank, 1886, 34 Ch.D. 546. See also Nesbitt v. Lawder, 1886, 17 L.R. Ir. 53; and Maguire on Interpretation of deeds, pp. 147-149.
Registry Acts - Priority - Equitable Mortgage - Registered Judgment - 3 and 4 Vict. c. 105 - 13 and 14 Vict. c. 29 - Costs.
THOMAS JOSEPH EYRE,-Appellant; GEORGE McDOWELL (Official Manager of the Tipperary Joint Stock Bank) and JOHN WHEATLEY,-Respondents [May 28, June 3, 4, July 17, 1861]. [Mews' Dig. viii. 515; ix. 1448. On point (i.) as to equitable mortgage, of. Ashton v. Corrigan, 1871, L.K. 13 Eq. 76; Hermann v. Hodges, 1873, L.R. 16 Eq. 18; (ii.) as to interest taken by execution creditor, cited in Badeley v. Consolidated Bank, 1886, 34 Ch.D. 546. See also Nesbitt v. Lawder, 1886, 17 L.R. Ir. 53; and Maguire on Interpretation of deeds, pp. 147-149.] Registry Acts-Priority-Equitable Mortgage-Registered Judgment- 3 and 4 Viet. c. 105-13 and 14 Viet. c. 29-Costs. John S. entered into an agreement with E. for securing payment of sums of money owing by him to E. In this agreement there was a covenant (amongst others) that John S. would give to E., as part of the securities, a mortgage on the lots of a particular estate, and James S., the brother of John and therein described as being the owner of lot No. 1, was to join in the mortgage of it. By a subsequent agreement, under seal, to which John S., E., and James S. were parties, after reciting the first agreement, John S. covenanted that he would, before a certain time, convey, or cause to be conveyed, to E., Lot 1, to be held by E. in fee: " And it is hereby agreed by and between the parties hereto," that if John S. shall pay E. the monies due to him, E. shall re-transfer " all securities [620] of whatever nature or kind." Provided, that if payment shall not be made, E. may by " entry, foreclosure, sale, or mortgage of any part or parts of the said lands, etc." levy the deficiency. " And each of them, John S. and James S., for himself, his executors, etc." covenanted to pay any deficiency, so that out of the interest or dividends on railway shares (previously deposited), or by cash payments of John S. or James S. there should be received a certain sum every year. All the three parties duly executed this agreement: 871 K H.L.C., 631 EYRE V. M 'DOWELL [1861] Held, that this amounted to an equitable mortgage binding on the estate of James S. James S. on the 6th October 1855, made an equitable mortgage of his estate to E. This mortgage was not registered. On the 25th August 1856, D. obtained a decree in the Court of Chancery against the estate of James S., and on the 7th November 1856 registered this decree as a mortgage under the 13 and 14 Viet. c. 29 (Ir.): Held, that this registration had not the effect, under the provisions of that statute, of giving a priority to the decree over the equitable mortgage to E. A registered judgment under the provisions of the 3 and 4 Viet. c. 105 (Ir.), and the 13 and 14 Viet. c. 29 (Ir.), only affects such property as the debtor at the time of the judgment lawfully possessed as of his own right, and over which he had the power of disposition, and therefore does not displace the interest of a previous equitable mortgagee. M'Auley v. Clarendon, Dru. Gas. Temp. Nap. 433, approved of. In Re Hamilton, 9 Ir. Ch. Rep. (N.S.) 512, dissented from. The costs of the appeal were ordered to be added to the Appellant's security. In 1852 the Appellant Eyre claimed to be a large creditor on the Coolnamuck estate, in the county of Waterford, the property of a person named Wall. John Sadleir was then Eyre's solicitor, and recommended him when the estate was sold in the Landed Estates Court to become its purchaser. Eyre adopted the recommendation, and authorised John Sadleir to act for him in the matter. The estate was sold in twelve lots, the first of which consisted of the mansion-house and demesne lands, [621] and was the most valuable. John Sadleir purchased all the lots, except lots 1 and 6, for Eyre, but (as Eyre afterwards alleged) fraudulently got James Sadleir's name inserted as the purchaser of lot 1. In consequence of this, Eyre did not want to hold the property, which it was then arranged should be treated as the property of James and John Sadleir. The latter was largely indebted to Eyre. On the 13th May 1855, certain articles of agreement between Eyre and John Sadleir were exe -cuted, which recited that in consideration'of a sum of £44,884 by John Sadleir paid or secured in manner thereinafter mentioned, Eyre agreed to sell to John Sadleir, all his, Eyre's, interest in the Coolnamuck estate, particularly the lots 2, 3, 4, 5, 7, 8 9, 10, 11, 12, the sum of £4961, portion of the purchase-money, to be secured to Eyre by an acceptance of the Tipperary Joint Stock Bank, and the balance £29,922 by a transfer of shares in the Royal Swedish Railway Company, and by a transfer, representing a mortgage, of the lots 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, " and also of lot 1 being the demense of Coolnamuck, the property of James Sadleir, Esq., who is to join in said mortgage as to said lot No. 1, subject however to a prior mortgage for £15,000 with interest thereon at five per cent." The principal sum was not to be called for within five years. Lot 1 was to be released from the mortgage to Eyre at any time upon payment to Eyre of the sum for which it was purchased by James Sadleir, or on substitution of other landed property of equal value. As to the other lots, John Sadleir was to be at liberty to sell them as opportunity might occur, applying the proceeds in liquidation of the incumbrances on them. (This power of sale seemed to have been exercised as to lots 3 and 4, but there was no statement of any money paid on account of the money obtained from the sales.) [622] On the 6th October 1855, articles ol agreement under sea] were executed between John Sadleir of the first part, Eyre of the second part, and James Sadleir of the third part. They recited a deed of October 1854, and some previous dealings between John Sadleir and Eyre with relation to advances made by Eyre to John Sadleir, in respect of the Earl of Kingston's estates, and that Eyre's claim was not satisfied, and then went on thus, that " whereas Eyre, at the request of John Sadleir, and upon the terms of his executing these presents, has consented, in lieu and stead of the security by the said in part recited deed, intended to be given to him, Eyre, 'Hit of the lands, etc., thereby assured, for the sums so agreed to be secured to him, to accept the securities hereinafter mentioned, arid to release the said lands in the manner expressed in a deed of the 5th October 1855, made between Eyre and John Sadleir." And it was farther recited, that instead of the security of the lands nbove-mentioned, John Sadleir had handed over to Eyre £20,000 Swedish railway 872 eyre v. m'dowell [1861] ix h.l.c., eas shares of £5 each, bearing interest at five per cent., and that John Sadleir thereby assigned them to him, subject to the condition to be returned if the money due to Eyre in respect of the Kingston advances should be paid. And John Sadleir covenanted that the shares were " in full force, in no way forfeited, and that he had full power to assign them." And for the purpose of giving to Eyre a farther security, John Sadleir, for himself, his heirs, etc. covenanted, on or before the 1st of January then next, to convey or to cause to'be conveyed, etc., to Eyre, his heirs, all the "portions of the Coolnamuck estate, described as lots 1, 2, 5, 7, 8, 9, 10, 11, 12," and the fee thereof to be held by Eyre, his heirs, executors, etc., free from incum-brances, save as mentioned in the agreement of May 1855. And it was agreed that [623] John Sadleir should no longer have the right to sell any portion of the Coolnamuck estate, which that agreement gave him. " And it is farther agreed by and between the parties hereto, that if John Sadleir shall at any time pay to Eyre, etc.," Eyre should re-assign. And it was provided that if within five years the monies secured were not repaid, Eyre might " by foreclosure, sale, or mortgage, or by any other lawful means," raise the deficiency out of the railway shares and out of the lands. " And each of them the said John Sadleir and James Sadleir doth hereby for himself, his executors, etc., covenant with Eyre, his executors, etc., that if whilst any of the monies intended by these presents to be secured are due, default shall be made " in the annual payment of £5000, John Sadleir or James Sadleir, his heirs, etc., would pay the deficiency, so that by or out of the interest of the railway shares or by cash payments of John Sadleir'or James Sadleir or by other means, Eyre should be secured in the payment of £5000 a year. And as a farther security John Sadleir endorsed to Eyre a promissory note of William Dargan, Esq., for £12,000, dated 1st May 1855, and payable 3rd May 1856, in London. This deed was not registered. The railway shares and the note were stated to have been forgeries. On the 25th August 1856, an order was made by the Court of Chancery on James Sadleir, to pay to G. McDowell, the official manager of the Tipperary Joint Stock Banking Company, the sum of £65,149 due from him to the company. The affidavit to register this order as a mortgage under the 13 and 14 Viet. c. 29, was made on the 3d November 1856. In this affidavit the lands of Coolnamuck, in the county of Waterford were, as required by the statute, specially mentioned, and the registration was completed on the 7th of that month...
To continue reading
Request your trial
- K Sockalingam Mudaliar v MRM Ramasamy Chettiar Veeramal
-
Davies v Kennedy, and Others
...2 B. & P. 1. Sumpter v. CooperENR 2 B. & Ad. 223. In re Driscoll I. R. 1 Eq. 285. Neve v. PennellENR 2 H. & M. 170. Eyre v. M'DowellENR 9 H. L. C. 619. Shaw v. NealeENR 6 H. L. C. 581. Beavan v. Lord Oxford 6 D. M. & G. 492. Marples v. HartleyENR 2 El. & El. 610. Banbury v. White 2 Y. & C. ......
-
ACC Bank Plc v Vincent Markham and Mary Casey
...mentioned in this report:- Bellamy v. Sabine (1857) 1 De G. & J. 566. Culpepper v. Aston (1682) 2 Chan. Cas. 115. Eyre v. McDowell (1861) 9 H.L.C. 619. Giles v. Brady [1974] I.R. 462. In re Murphy and M'Cormack [1930] I.R. 322. A.S. v. G.S. [1994] 1 I.R. 407; [1994] 2 I.L.R.M. 68. Sorrell v......
-
Allied Irish Banks Plc v Bradley and Others
...is actually created by the appropriate method, the intended mortgagee has an equitable mortgage on the land. Thus, in Eyre v. McDowell [ (1861) 9 HLC 619] it was held that a covenant by a debtor to the effect that, if the debt was not paid by a certain date, the creditor could, by entry, fo......