The Gazette 1993

GAZETTE

OCTOBER 1993

Judgment Mortgages - A False Dawn

i •

by Christopher Doyle*

The baffling language of section 6 of

the Judgment Mortgage Act, 1950

has caused much confusion over the

years, writes Christopher Doyle,

and clearly the battle over s.6 has

plenty of life in i t

David Lynch, Judge of the Irish

Bankruptcy Court 1859/1867 and of the

Landed Estates Court 1867/1872, is still

remembered for his refusal to hear

technical objections in Judgment

Mortgage suits. His leading decision,

Smith and Ross

[

was given when the

Judgment Mortgage (Ireland) Act 1850

was a bare decade old; yet already the

baffling language of section 6 of the Act

had caused such confusion that as

Lynch J noted, almpst every Judgment

Mortgage that came before him was

attacked for a technical flaw. The Judge

made it clear that no technical

objections would succeed in his Court;

for as he said:-

" Admit once this class of criticism,

and where can you stop?"

Lynch J's robust approach was not

universally admired by his colleagues:

opinions ranged from "the embodiment

of common sense"

to "the champion of

doubtful registration"

. These

conflicting views on Lynch J reflect a

deeper conflict on the effect of non-

compliance with section 6 which has

lasted down to the present day.

Conventional wisdom is that any non

compliance with section 6 automatically

makes the Judgment Mortgage void; but

quite an impressive list of Judges have

echoed Lynch J's vigorous

disagreement.

Finally Costello J in

Irish Bank of

Commerce v O 'Hara

reduced the law to

a single rational principle, affirmed on

appeal by the Supreme Court

: since the

1850 Act nowhere states that non-

compliance with section

will make the

Christopher Doyle

mortgage void, it should do so only if

non-compliance defeats the purpose of

the Act i.e. if it makes it impossible to

identify the lands or parties affected.

For a too brief interval, it seemed that

the law of Judgment Mortgages had

been put on a workable basis. Alas,

O'Hara

was a false dawn. Four months

before the Supreme Court delivered

judgment, the High Court had struck

down another Judgment Mortgage

affidavit on a technical point.

This

decision is not under appeal, so it is

unlikely that the Supreme Court will

deal with the particular point for some

time. Clearly the battle over section 6

still has plenty of life in it.

For a too brief interval, it seemed that

the law of Judgment Mortgages had

been put on a workable basis.

Allied Irish Banks pic v Griffin

The plaintiff in

Allied Irish Bank pic v

Griffin

sought a Well Charging Order

over the Defendant's lands. The only

point at issue was the description in the

Judgment Mortgage affidavit of the

"title, trade or profession" of the

defendant, who was a farmer, as a

"widow". Plaintiffs counsel urged the

Court to take the purposive view of

section 6, citing

Thorp v Browne

and

the High Court judgment in

Irish Bank

of Commerce

O'Hara.

He pointed out

that none of the authorities which has

held Judgment Mortgages void for

misdescription had examined the

purpose of section 6.

Thorp

Browne

held that any description of the debtor's

place of abode which identified the

debtor beyond doubt, was sufficient.

Why should a stricter test be applied to

the "title, trade or profession"? Denham

J in finding for the defendant did not

answer this question.

Irish Bank of

Commerce

O 'Hara

was distinguished

on the grounds that it dealt with a

description of the land;

Thorp

Browne

was not considered.

The Judge relied on

Crosbie

Murphy

Lacey

and

Re: Swanton 's

Estate

Crosbie v Murphy,

the

description of the defendant, who was a

hotelier, as a widow, was found to be a

fatal defect. Only one passage (from the

Judgment of Compton J) is worth

quoting:-

"It is most material that the

designation of the party against

whom the Judgment Mortgage is to

be obtained should be stated with

precision and accuracy."

Undoubtedly

Crosbie v Murphy

authority for the defendant in

Griffin.

The only question is whether Denham J

should have followed it.

The point at issue in

Murphy v Lacey

was whether the description of the

defendants as "farmers" invalidated the

Mortgage; they had been farmers but at

the material time were farm labourers.

Porter MR said:-

"It was clear from the affidavits that

the plaintiffs were farm labourers . . .

and could not be correctly described

as farmers, and consequently that the

affidavit registering the Judgment as

a Mortgage was defective . . . he felt

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