Northern Bank Ltd v Haggerty
| Jurisdiction | Northern Ireland |
| Judgment Date | 01 January 1995 |
| Date | 01 January 1995 |
| Court | Chancery Division (Northern Ireland) |
- Sale by court - Sale of property and distribution of proceeds - Application by party interested in one moiety or upwards requesting court to direct sale - Party required to show that decree of partition might have been made before passing of Partition Act - Right to partition confined to persons having estates in possession - Whether party owning charge over land would have been granted partition - Whether party owning charge over land able to show an interest in one moiety or upwards in property - Partition Act, 1868, s. 4.
In 1991 the bank obtained a judgment against H. in the sum of £13,260.63 together with costs and on 15 April, 1992, an order charging land was made under art. 46 of the Judgments Enforcement (Northern Ireland) Order, 1981, in favour of the bank, imposing on H's interest in the family house, which he jointly owned with his wife, a charge securing payment of a total sum of £12,068.33. On 28 June, 1993, the bank was granted leave to exercise the power of sale contained in art. 52 of the 1981 Order. The bank issued an originating summons on 21 July, 1993, seeking the remedies of possession and partition or in the alternative an order for sale in lieu of partition. Master Ellison dismissed the summons on the ground that ownership of an estate in possession in an undivided moiety was necessary to compel partition or sale in lieu of partition under s. 4 of the Partition Act, 1868, and that ownership of a charge was not ownership of such an estate. The bank appealed. Mrs H. contended, inter alia: (i) that an order charging land was subject to the restricted method of enforcement provided for in art. 52 of the 1981 Order which did not include partition or sale in lieu; and, in the alternative, (ii) that even if the owner of a charge under art. 46 was not confined to exercising the power of sale in art. 52, the remedies of partition or sale in lieu were not available since a decree for partition would not have been made before the passing of the 1868 Act as required by s. 4 because the right to partition had been confined to persons having estates in possession and an owner of a charge merely had rights over the property as security rather than any interest in the property. Held - (1) Article 45 of the 1981 Order provided clearly that 'a money judgment [was] enforceable against land only in accordance with Articles 46 to 52'. The restricted method of enforcement was found in art. 52 where the...
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