The Gazette 1990

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GAZETTE APRIL 1 9 90
were due on that date then the
family home was encumbered
only to that extent".16
It is clear from the Supreme
Court's judgment at least that a
mortgage by deposit is not
redeemed simply by the fact that
no money is owing at a particular
moment; however the mortgagee's
interest in such a case is reduced
to the point where it ceases to be
a mortgage and becomes a "bare
equitable interest". It appears that
the mortgage will be revived
automatically if a further advance
is made (a conclusion also reached
by Lynch J. in Bank of Ireland -v-
Coen) and the rights of a
mortgagee may thereafter be
enforced as before. The law on this
point now appears to be settled,
though not with the clarity one
would wish for.
The other issue raised by Bank of
Ireland -v- Purcell is how far the
definition of a further advance as a
"conveyance" would be extended.
By bringing such advances within
Section 3 of the Family Home
Protection Act, 1976, the decision
has already had the effect of
rendering void a very large number
of equitable mortgages; if the
further advance is a conveyance for
other purposes also, it is not easy
to foresee the consequences. For
example, in Purcell the Plaintiff
relied on the doctrine of "tacking"
i.e. that for the purpose of priority
in registration further advances
under a Mortgage for present and
future advances are part of the
original mortgage; the doctrine was
considered by Barron J. but found
to be inapplicable. Since the further
advance is now a separate
conveyance for some purposes, will
this alter the priority of mortgages?
On balance the answer is probably
no; in Purcell the Supreme Court
drew a sharp distinction between
remedial and conveyancing
statutes and held that the former
must be interpreted as widely as
necessary to give effect to their
purposes; by implication therefore,
a conveyancing statute may be
intrepreted literally. This suggests
that the settled law of mortgages
will not be disturbed further than
necessary to give effect to any
relevant remedial statute.
Overall one's main impression of
the law of equitable deposit is its
informality and lack of settled rules.
In theory this accords with the
notion that such deposits are a
matter for agreement between the
parties. In practice, given that such
agreements are normally weighted
heavily in favour of the mortgagee,
the failure to spell out the terms
puts a havey burden on the
mortgagor especially as such
mortgages rarely, if ever, contain
any express provision for
redemption. Where clear written
terms are not agreed, it is advisable,
as Kennedy C.J. thought17 that the
transaction be explained as clearly
as possible to the mortgagor.
NOTES
1. (1934) . 89.
2. [1934] 89 to 90.
3. Irish Land Law (2nd Edition) paragraph
12-44.
4. [1931] I.R. 368.
5. [1931] I.R. 3 68 at 373.
6. [1931] I.R. 268.
7. It should be said that both Ryland's
Digest and Wylie's Irish Land Law seem
to be in some confusion as to what the
case actually decided; in particular one
might gather from Wylie (Note to
paragraph 12:44) that the decision went
the other way.
8. See Fisher and Lightwood on Mortgages
(10th Edition) at p.67 and the cases
there cited.
9. Lynch J., 11th November, 1988,
Unreported.
10. Firth & Sons Ltd. -v- Commissioner of
Inland Revenue [1904] 2 K.B. 204.
11. [19731 I.R. 188.
12. [1973] I.R. 188 at 191/2.
13. At page 5 of his Unreported Judgment.
14. Supreme Court 2 4 th July, 1989,
Unreported, affirming [19881 I.L.R.M.
480.
15. [1988] I.L.R.M. 4 80 at 482.
16. At page 7 of the Judgment of Walsh J.
(nem dis.) 24th July 1989 Unreported.
17. See Bank of Ireland -v- Macaura above.
JDavid Qaretfi
Jones
. 'J.S.S. 'Dip.
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