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42
The Gazette of the Incorporated Law Society of Ireland
[February, 1943
in England operated to give the English
Trustee priority over persons claiming an
equitable deposit of
the Land Certificate
from the owner \vithout notice of the bank
ruptcy, and
two
judges
(Meredith and
Geohegan, J. J.), having held the opposite.
The resulting position is most embarrasing
to purchasers and raises a problem,
the
answer to which lies with the legislature.
Personal liability of Vendor's Solicitor for
non-disclosure to Purchaser.
The recent English decision in District Bank
Ltd. v. Luigi Grill Ltd. and others (168
L.T.R. 53) deals with the liability of a solici
tor acting for the vendor or mortgagor in a
•conveyancing matter for the concealment
from the purchaser or mortgagee of any
instrument or incumbrance material to the
title. Under Section 183 (1) of the Law of
Property Act, 1825, any person disposing of
property for moneys worth to a purchaser, or
the solicitor of such a person, who conceals
from the purchaser any instrument or incum
brance material .to the title with intent to
defraud is guilty of a misdemeanour. Under
Section 183 (2) any such person or her solici
tor is also liable to an action for damages for
loss sustained by reason of the concealment of
the instrument or
incumbrance.
In the
above reported case the first defendants
had charged, by way of
legal mortgage,
in favour of the plaintiffs as security for
£36,000, certain premises which,
shortly
prior to the date of the mortgage, had been
subdemised to sublessees. As part of the
terms of the sublease the sum of £4,500,
being
three
year's
rent was
paid
in
advance by
the sublessees
to
the first
defendants.
The second defendants were
the solicitors who had acted for the lessees
at the granting of the sublease and had also
acted for
them in connection with
the
mortgage to the plaintiffs.
The underlease
was abstracted for the mortgagee but the
fact that three years' rent under the sub
lease had been paid in advance was not
mentioned.
The mortgagee suffered loss
and instituted proceedings joining the solici
tors as co-defendants.
It was held that
assuming there had been concealment of an
instrument or incumbrance (which was not
decided) no civil action for damages lay
against the solicitors unless the concealment
was with intent to defraud.
The action
against them was dismissed.
The Law of
Property Act, 1925, does not apply to this
country, but Section 183 thereof is very
similar to although not identical in terms
with Section 24 Law of Property Act,
1859, as amended by Section 8" Law of
Property (Amendment) Act, 1860.
AN
ARD-CHUIRT AR CHUAIRD
THE HIGH
COURT ON
CIRCUIT.
EASTERN CIRCUIT.
Wicklow—
At Wicklow, Monday, March 8,
at 11 o'clock.
Wexford—
At Wexford, Tuesday, March 9,
at 11 o'clock.
Waterford
—At Waterford, Thursday, March
11, at 11 o'clock.
Tipperary (South Riding]—
At Clonmel, Fri
day, March 12, at 11 o'clock.
Tipperary (North Riding)—
At Nenagh, Mon
day, March 15, at 11 o'clock.
Offaly—
At Tullamore, Thursday, March 18,
at 11 o'clock.
Leix
—At Portlaoighise, Friday, March 19, at
11 o'clock.
Kilkenny—
At Kilkenny, Monday, March 22,
at 11 o'clock.
Carlow—
At Carlow, Tuesday, March 23, at
11 o'clock.
Kildare—
At Naas, Friday, March 26, at
11 o'clock.
Judge:
MR. JUSTICE GEOGHEGAN.
SOUTHERN CIRCUIT.
Clare—
At Ennis, Tuesday, March 9, at 11
o'clock.
Limerick
—At Limerick, Wednesday, March
10, at 11 o'clock.
Kerry—
At Tralee, Friday, March 12, at 11
o'clock.
Cork—
At Cork, Thursday, March 18, at
11 o'clock.
Judges :
THE
PRESIDENT OF
THE HIGH COURT,
MR. JUSTICE OVEREND.