Northern Banking Company Ltd, v Devlin
| Jurisdiction | Northern Ireland |
| Judgment Date | 09 May 1924 |
| Date | 09 May 1924 |
| Court | Court of Appeal (Northern Ireland) |
Appeal. (N. I.)
Owner of registered charge on lands - Action for recovery of land - Mortgagee against mortgagor - Mortgage by way of charge only - Supreme Court of Judicature Act (Ireland), 1877 (40 & 41 Vict. c. 57), sect. 27,sub-s. 1 - Local Registration of Title (Ireland) Act, 1891 (54 & 55 Vict. c. 66), sect. 40, sub-ss. 2 and 4 - Conveyancing Act, 1881 (44 & 45 Vict. c. 41), sect. 2, sub-s. 5; sect. 7, sub-s. 1 (c); and sect. 19.
Case Stated for the opinion of His Majesty's Court of Appeal in Northern Ireland by Moore L.J. from the County of Down Spring Assizes in March, 1924.
The case stated is as follows:—
This case came before me as Judge of Assize for the County of Down on March 1st, 1924, by way of appeal from a decree for possession granted by the County Court Judge of Down.
I refer to the original Civil Bill which was in ejectment.
It appeared, and I so found, that the defendant, Bernard Devlin, by deed of 11th October, 1922, as beneficial owner, charged the lands now sought to be recovered in favour of the bank. I refer to the deed in question and to the certificate of charge.
The lands were subject to the provisions of the Local Registration of Title Act, 1891, and were registered in the Local Registry.
The deed of charge was also registered.
It was admitted that Bernard Devlin was in default so far as payment of principal and interest due under the deed was concerned.
The County Court Judge gave a decree for possession, believing, as appears from a letter from his Registrar, that he was bound by a decision of Mr. Justice Wilson.
I consulted Mr. Justice Wilson, who says that he never fully considered the matter and it was never argued before him. All he did was to direct the officer in the case of a writ of summons specially indorsed in ejectment which was undefended to enter judgment for possession in the office.
Mr. T. J. Campbell K.C., for the plaintiff, referred to Antrim County Land, Building, and Investment Co. v. Stewart(1), and relied on the combined effect of the Judicature Act (Ireland), 1877, sect. 27, the Conveyancing Act, 1881 (definition sect. and sect. 7, sub-s. 1 (c)), and the Local Registration of Title Act, 1891, and claimed that the plaintiffs were entitled to succeed.
Mr. Murphy K.C., contra.
I was of opinion that the plaintiffs had no estate of any sort entitling them to bring an action of ejectment; that they owned a charge on the lands, but not the lands themselves, and that their proper remedy was an order for sale in the Chancery Division.
At the request of plaintiffs' counsel, I agreed to state a case for the opinion of the Court.
The question is whether or not in the premises the plaintiffs are entitled to succeed in an action of ejectment.
The defendant D., the registered owner of certain lands, being indebted to a bank to secure moneys already advanced and further advances, executed a deed of charge, by which he covenanted to pay all moneys then or thereafter due, and interest thereon; and all moneys so covenanted to be paid were thereby declared well charged on the lands therein comprised. The deed of charge contained an assent by D. to the registration of the charge as a burden affecting the lands. It also provided that all the powers conferred upon mortgagees by the Conveyancing Act, 1881, should apply to the security, and that the powers of leasing conferred on a mortgagor in possession by the Conveyancing Act, 1881, should not be exercised without the consent in writing of the bank. The deed of charge was duly registered. D. made default in payment of principal and interest due under the deed, and...
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