The Gazette 1976

GAZETTE

January 1976

Irish Court decisions with the equitable principles and maxims. The decision in Tench v. Molyneux —(1914) 48 ILTR—is discussed and one gets the impression that the author is not entirely happy with the line of decisions that followed from it, including Devoy v. Hanlon—(1929) I.R.—and Re Strong— (1940) I.R. In this connection it is good to be reminded of Section 75 Sub-section (2) of the Registration of Title Act 1964 which provides "where a registered Charge is expressed to be created on any land for the purpose of securing future advances (whether with or without present advances), the Registered Owner of the Charge shall be entitled in priority to any subsequent Charge for the payment of any sum to him in respect of such future advances which may have been made after the date of, and with express notice in writing of, the subsequent Charge". McAllister in his book on Regis- tration of Title comments on this Section as follows: — "It appears that the fact that the registration of a subsequent Charge is not notice within the meaning of Section 75 (1) of the Act. (In McAllister the reference is to Section 76 (1) but this is clearly a typographical error). The entry of a Caution or Inhibition in the Register of the lands affected to protect the interest of the owner of such subsequent Charge would appear not to be notice. The owner of such Charge for future advances can safely continue to lend money on the security of the Charge in priority to any subsequent registered Charge: Section 74 of the Act. The only notice that he would appear to be affected by would be express notice in writing of the creation of a sub- sequent Charge; so that advances could be safely made on the security of his Charge until such notice was received by him". With regard to unregistered land, the Author states (at page 647) that no further advances will secure priority over a subsequent mortgage if the person making the further advance has notice of the intervening mortgages at the time of making that further advance and "in the case of an obligation to make further advances, where notice would deprive the person under the obligation of priority, it seems that he is protected by being deemed to be no longer subject to that obligation once the mortgagor creates the intervening mortgage". He goes on to say that "it was held in Re O'Byrne's E.ytate--(1885) 15LR I r—t hat even where the successive mortgages are all registered in the Registry of Deeds, a prior mortgagee can still tack further advances so as to squeeze out of priority an intervening mortgagee, provided he had no notice of the intervening mortgagee when he made his further advance". This ruling results from the earlier decisions of the Irish Courts that mere registration in the Registry of Deeds is not notice for these purposes. If the intervening registered mortgagee wishes to protect himself, he must give express notice to the prior mortgagee whose mortgage is expressed to secure further advances. In the discussion on party walls (at page 375), there is reference to the Boundaries Act (Ireland) 1721 and the Dublin Corporation Act 1890. The former Act enables one owner to build a fence or wall on the boundary line in respect of which there has been no dispute for three years and to charge half the cost to his adjoining neighbour. The cost is recoverable as a debt owed. The latter Act deals with the repair of party structures and gives an owner the right to enter on the property of an adjoining owner to carry out repairs and other works. These Acts do not appear to have been much used, probably because most people are not aware of their existence. 17

Maurice Curran, solicitor This book is the first comprehensive Treatise on Land Law in Ireland and will be welcomed with delight by practitioners and law teachers concerned with this branch of the law and by every student. One might imagine the differences between Irish Land Law and English Land Law (with the large exception of the 1925 Property Legislation in the United Kingdom) were not too great and that, by careful use of the Split mind that all Irish Students learn to develop when using English Text Books, one could be fairly confident that one had a fair grasp of Irish Land Law. Having read Mr. Wylie's great work, this illusion is shattered. There are enormous areas, the Land Acts, Registration of Deeds and the Law of Landlord and Tenants spring immediately to mind, where Irish Law is substantially, and indeed at times in its basic nature, quite different from that of our near neighbours. Not only is this a useful book for the Student of Land Law but will be exceptionally useful to students of Equity and Succession—two areas in which one was most unhappy endeavouring to rely on English Text Books because of the 1925 legislation in England and the Succession Act in Ireland. The author has not restricted his researches to Ireland and the U.K.: there are references to Australian Law and in particular one was interested to learn that some Sections of our 1961 Charities Act are based very closely on Australian precedents. The Table of Periodicals includes American Law Journals, Historical Reviews, The South African Law Journal, the Sydney I MW Journal, The Jrish Ecclesiastical Record and The University of Malaya I MW Review amongst others. Turning to the contents, the first Chapter is a brilliant sketch in less than 50 pages of the history of Irish Land Law. There is copious citation of sources and a teacher of Legal History using these sources and this Chapter will not be found wanting by his students. It is interesting to learn that the ancient Irish Patron/ Client relationship was terminable at will and based on contract not tenure (as it was of course in the feudal system) which was an early indication, perhaps, of the approach adopted in Deasy's Act many centuries later in which the relationship of Landlord and Tenant is also based on contract (page 8). The Chapter dealing with Fee Farm Grants and leases for lives is excellent. This Reviewer was un- familiar with the Tenantry Act (Ireland) 1779 dealing with leases for lives with covenants for perpetual re- newal, which confirmed the views of the Courts that the estate granted to the tenant was intended to be perpetual. This Act is still in force. The text does not appear to state whether this right to renew, which would now presumably produce on renewal a Fee Farm Conversion Grant, is an equitable right to a Fee Farm Grant or a mere equity. The distinction between a mere equity and an equitable interest, which is very much an Irish develop- ment and rates very little comment in Megarry & Wade on the Law of Property, is discussed in detail on page 106. The writer appears unhappy, in this reviewer's opinion quite rightly, at the extension of the of the doctrine of mere equities in Ireland, which often means that an interest which in England would be treated as an equitable interest in land is here treated as a mere equity. This question arises mostly in con- nection with priorities and the writer makes strenuous efforts in the chapters on priorities, both as regards the doctrine of notice and as regards the Registration of Title and Registration of Deeds Acts, to reconcile