The Gazette 1976

GAZETTE

January 1976

legal writing. It is almost fifty years since the last text book on the Land Law of Ireland was published. The ice has been broken. It is hoped that other academic lawyers in Ireland will now undertake works on other vital subjects such as Conveyancing, Family Law and Tort. Irish Land Law was commissioned by the Incor- porated Law Society of Ireland and sponsored by the Arthur Cox Foundation. Jurists in both parts of Ireland owe a great debt to the Law Society and to the Foun- dation. The Chairman of the Foundation, Mr. Justice Kenny acted as Consultant Editor for the Law in the Republic of Ireland. Previously students of Irish Land Law were forced to read Megarry's Manual of the Law of Real Property, Megarry and Wade's The Law of Real Property and Cheshire's The Modern Law of Real Property (the leading student text books on this area in England). Now they can turn with an easy mind to Mr. Wylie's book. The law of both the Republic of Ireland and Northern Ireland is covered. In some chapters separate treatment has been given to the two jurisdictions. How- ever, integrated discussion occurs wherever possible. The book states the law as on 1st May 1975. Paragraph numbers (usually corresponding to paragraphs of the text) have been inserted throughout the book on a chapter by chapter basis. In a book of this size and scope this ensures tidiness of presentation. The author wrote this book with both practitioners and students in mind. The book, which has a compre- hensive citation of authorities (and especially Irish authorities) in the foot-notes, will be a convenient reference work for practitioners. They will be inter- ested in the author's lengthy and learned treatment of mortgages. They will find the section on Powers of Attorney particularly useful as there is not much readily available written material on this kind of power in the Republic of Ireland. The optional pratice of filing an instrument (whose execution is verified) creating a power of attorney in the proper office of the Supreme Court is referred to. In Northern Ireland this practice has been abolished because it was expensive and cumber- some and did not secure any protection for interested parties. However the author states that the right to search the file and to obtain an office copy of an instrument already deposited is preserved. The book also caters for the student in that the law is explained in a straightforward manner. As much of the language of this area is technical, the author usually does not leave unexplained any word or phrase which might cause difficulty. The reader is gradually intro- duced to each topic by means of an interesting and quite substantial introduction. At the beginning of the first chapter the author discusses a typical land trans- action and includes references to further parts of the book which deal with the complexities discussed. The reader is assisted throughout by examples which the author uses to illustrate certain points. There are appropriate foot-notes with erudite references to further reading in articles, standard text books and mono- graphs. The law student might well be advised to read the main body of the work on the topic he is studying and to achieve an understanding of that topic before looking at any of the foot-notes. In his deep research the author discovered the exis- tence of an abundance of Irish material. However, important recent English case law is not ignored. For example, Re Baden's Deed Trusts, McPhail v. Doulton (1971) A.C. 424, a decision of the House of Lords, is discussed within the context of powers of appointment. The doctrine of secret trusts has been the subject of controversy over the years. Irish judges have not always

The Chapters on Settlements and Administration of Trusts are very important for practitioners and should be read by any Solicitor (and that means every Solicitor) who has ever to make a Will. Both for the student and practitioner, the Chapter on Mortgages is one of the most important, as our law particularly in relation to priorities and to the practice as to enforcement of remedies, is quite .different from England. The Section on Judgment Mortgages is comprehen- sive and, in relation to Searches, the comment on page 847 should be noted that it is essential that the description of the land in a Requisition for Search should include all descriptions by which the land has been known at any time, as failure to do this in a recent case lead to a purchaser acquiring land without notice of a judgment mortgage to which the land was subject (Dardis and Dunne s Seeds Limited v. Hickey, Un- reported)—Kenny J—11 April 1974. The only criticism this reviewer has are first, that Flats are mentioned on page 1 and nowhere else in the Text. One would have thought that with the de- veloping importance of both leasehold and freehold flats, this subject would have merited more extensive discussion. Secondly, that throughout the book, where discussing words of limitation in respect of property, no mention is made of Section 123 of the Registration of Title Act 1964 which provides that an instrument of Transfer of freehold registered land without words of limitation should pass the fee simple or other the whole interest unless a contrary intention appears in the instrument and that a transfer of freehold registered land to a Corporation Sole by his Corporate designation without the word "successors" should pass the fee simple or other the whole interest unless a contrary intention appears in the instrument. Thirdly, the discussion on merger, particularly in relation to pyramid titles in cities and the buying out of the freeholds under the Ground Rents Acts, was dis- appointing. It seemed to this reviewer that the central problem of endeavouring to merge part of a lease in the reversion could have been dealt with more author- itively. One was surprised to see no reference to Section 12 of the Conveyancing Act 1881 in the discussion. Fourthly, the discussion on the Concept of Family Assets and the Spouse's Equity in the Matrimonial Home was also disappointing. Whilst the text states that the British Authorities and the Northern Ireland Authority of McFarlane v. McFarlane—(1972 ) N.I.— had been considered by Mr. Justice Kenny in the case of Heavey v. Heavey, unreported—20 December 1974 — it was not clear as to the view he took as to the rights of a spouse who would not be entitled under the usual doctrines of Property Law such as the pre- sumptions of a resulting trust or advancement. Obviously these are very minor criticisms to make about this tremendous addition to Irish Legal literature, which every Solicitor in practice should acquire. It is to be hoped that the Law Commission will use this work and "The Survey of Northern Ireland Land Law" as a basis for the rapid attention to the reform of Land Law which is urgently needed. Hugh M. Fitzpatrick The learned author of this comprehensive work is Senior Lecturer in Law at University College, Cardiff, and Editor of the Northern Ireland Legal Quarterly. His decision to write the book is a major event in Irish

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