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GAZETTE
OCTOBER 1993
facilitate indexing in the Registry of
Deeds . . . the present case does not
differ in principle from
Thorp
v
Browne
and
Harris
v
O'Loghlen.
The reasoning in those cases
commends itself to commonsense
and it should in my opinion be
followed."
24
The Index of Lands in the Registry of
Deeds was not kept up to date for
many years
25
; therefore the only
purpose of describing the lands now is
to identify them. Any description
which identifies the lands with
reasonable certainty is sufficient even
if it is not wholly accurate.
In
O'Hara
the defendant before the
Supreme Court relied on
Re Flannery
26
and
Murphy and McCormack
21
.
In
Re
Flannery
Kenny J found a Judgment
Mortgage affidavit to be invalid
because a non-existent parish was
given. He said:-
"The provision in section 6 of the
Act of 1850 that the Parish should
be stated is to enable the Affidavit
to be registered correctly in the
Index of the Lands and in the
Abstract Book so that those
searching will not be misled. But if
a Parish which does not exist is
referred to in the Affidavit, it
cannot be correctly registered and in
my opinion is defective."
28
There are several problems here.
Firstly as we have seen the Index of
Lands was not kept up to date for many
years; is section 6 therefore obsolete?
Secondly the Supreme Court in
Grace
identifies the primary purpose of
section 6 as being to identify the lands.
Finally as we have seen Kenny J
himself in
Grace
recognised that a
misdescription of the lands is not
always fatal. One must conclude that
Flannery
was wrongly decided.
In
Re Murphy and McCormack
the
Judgment Mortgage affidavit omitted
the relevant Barony. The Supreme
Court held this to be a fatal error,
refusing to apply
Thorp
v
Browne.
In
O 'Hara
the Supreme Court,
recognising that this decision cannot be
reconciled with
Grace
, preferred
Grace.
It was satisfied that in case
either of the description of the lands, or
of the debtor's identity or place of
abode, a misdescription or omission
would not be fatal unless it was likely
to mislead.
Conclusion
Where does this leave
Allied Irish
Banks pic
v
Griffin
? In
O 'Hara
the
Supreme Court approved those
authorities which state that "a
commonsense" approach has to be
taken to:
(i) The description of the lands;
(ii) The identity of the debtor;
(iii) The debtor's place of abode;-
and (by implication) disapproved the
numerous authorities which hold that
strict compliance is necessary in these
matters.
Either
Griffin
is wrong, or the debtor's
"title, trade or profession" is in a
separate position from the rest of
section 6. In this folley ridden field, the
absurdity of the second solution does
not prove that it is wrong. But is there
any evidence that the courts have ever
treated the "title, trade or profession"
clause separately? In
Crosbie
v
Murphy,
Lefroy CJ said:-
"Everything upon the face of the
Judgment must of necessity be
inserted in the Affidavit."
29
In
Murphy v Lacey,
Porter MR stated:-
"The Statute was not complied
with."
10
In
Sexton v Valente
31
Judge Connolly
said:-
"While the Court has jurisdiction to
relieve in case of non-compliance
with a Rule, it has no jurisdiction in
the case of a Statutory
requirement."
32
There is nothing in these judgments to
show that the "title, trade or
profession" clause is in a special
position. Nor do we lack decision
(notably
Re Swanton 's Estate
) while
the Court overruled objections to the
description of the "title, trade or
profession"; and even in
Crosbie v
Murphy
as we have seen, Compton J
admitted that a purposive approach to
this clause is possible.
One must conclude that the "title,
trade or profession" is in the same
position as the rest of section 6: i.e.
while many cases on the point insist
on strict compliance with this section,
these must yield to that line of
authority, approved in
O'Hara
, which
holds that no error which does not
deceive is fatal.
It was open to Denham J to follow the
authorities cited. Nor could she fairly
be expected to predict the outcome of
the appeal in
O'Hara.
However one
must regret this return to strict
compliance. Since the "title, trade or
profession" clause was not at issue in
O 'Hara
and was not referred to there,
it is just possible to argue that this
clause is not covered by that judgment.
It is safe to predict that such
arguments will be made, until the
Supreme Court, which has tried so
hard to restore commonsense to this
topic, puts the matter to rest.
References
1. (1860) 11 Ir. Ch. Rep. 397
2. (1860) 11 Ir. Ch. Rep. 397 at 402.
3. See
Harris v O'Loghlen
(1888) LR (Ir.)
Vol. XXI11 61 at 81 per Lord Ashbourne
L.C.
4. See
Spaddacini
v
Treacy
(1888) LR (Ir.)
Vol XXI 553 at 559 per Porter M.R.
5. See in particular
Thorp
v
Browne
(1867)
LR 2HL 220;
Harris v O'Loghlen
(1888)
LR (Ir.) Vol XXI11 61;
Credit Finance
Ltd. v Grace
Supreme Court 9 June, 1972
Unreported.
6. High Court 10 May, 1989 Unreported;
Supreme Court 7 April, 1992 Unreported.
7.
Allied Irish Banks pic v Griffin
(1992) 2 IR
70; (1992) ILRM. 590.
8. (1992) 2 IR 70; (1992) ILRM 590.
9. (1867) LR 2 HL 220.
10.(1858) 8 ICLR 301.
11.(1896) 31 ILTR42.
12.(1897) 31 ILTR 166.
13.(1858) 8 ICLR 301 at 311.
(Continued on page 302)
299