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GAZETTE
JULY-AUGUST
1980
money to be applied towards the dis-
charge of the mortgage debt; that as
between the two claimants, the Plain-
tiffs were first in making their claim
and, therefore, should have priority
over the Bank; and, that the
Plaintiffs' claim should have priority
because the Plaintiffs had a judgment
which entitled them to execute forth-
with, whereas the Bank had only got
a cause of action.
Held
(per McWilliam J.):-
That the Bank had a statutory
right under Section 23 (4) of the
1881 Act to have the insurance
money applied towards discharge of
the mortgage debt and had, in exer-
cise of that right, given notice to the
Sun Alliance before the date of the
fire; and that Section 23 (4) was not
restricted to insurances effected
under a mortgage deed or under the
1881 Act, as was the position under
Section 23 (3); and that this dis-
tinction between Section 23 (4) and
Section 23 (3) was recognised in the
cases of
In the matter of J. E.
Doherty, a bankrupt,
[1925] 2
I.R.
246 and
Halifax Building Society v.
Keighley
[1931] 2 K.B. 252; that in
each of those two cases the mort-
gage was by deed and it had hitherto
normally been assumed that the 1881
Act only applied to a mortgage by
deed, but that clause (vi) of Section 2
of the 1881 Act defined "mortgage"
as including any charge on property
for securing money or money's
worth, and that an equitable charge
by deposit of title deeds was a charge
on property for securing money.
In his judgment the judge also
referred to the current (4th) edition of
Halsbury's Laws of England, Vol.
17, p. 522, para. 1032, which stated
that a contract of fire insurance was a
personal contract which did not pass
with the property and that where
mortgaged property had been insured
by the mortgagor and was destroyed
by fire, that the mortgagee was not, in
the absence of a covenant as to the
application of the insurance money,
entitled to have it applied in payment
of the mortgage debt.
(Per McWilliam J.):
" . . . the principle stated in Hals-
bury ought to be read so as to in-
clude a reference to a statutory
provision in addition to the
reference to a covenant as to the
application of the insurance
money".
Brendan Myler and Carmel Myler v.
Mr. Pussy's Nite Club Limited, Liam
Ledwich, Alan Amsby and Tony
Keogan (Defendants) and Allied Irish
Banks, Third Party
- High Court
(per McWilliam J.) 11 December
1979 — unreported.
Summaries of Judgments prepared
by: John Gore-Grimes, William
J.
Maguire, Michael Staines and edited
by Michael V. O'Mahony.