The Gazette 1978

GAZETTE

MAY 1978

SALE OF LAND — RECEIVER

Validity of Attestation of the Seal of

a company by the Receiver —

Validity of Execution by Receiver of

Deed as Attorney for Compnay.

This case arose out of an application

against a refusal by the land registry

to register a transfer over folio 43689

Co. Cork of which the Cork Shoe

Company Limited was the registered

owner and the Bank of Ireland, the

owner of a registered charge.

On 23rd October, 1965, the Cork

Shoe Company ("The Company")

issued a debenture to the Bank of

Ireland giving,

inter alia,

a specific

charge on the lands comprised in the

above folio. Clause 10 of the

debenture gave the Bank power to

appoint a receiver with power to take

possession of, collect and get in the

property charged and such Receiver

was given power "to sell or concur in

the selling, let or concur in the letting

of any of the property charged by

this debenture and carry any such

sale into effect by deed in the name

and on behalf of the Company or

otherwise to convey the same to the

purchaser".

It was further provided that the

Receiver be the agent of the

Company and in Clause 14:

"the Company hereby irrevocably

appoints any Receiver or

Receivers appointed as afore-

said, The Attorney or Attorneys

of the Company for the Com-

pany and in its name and on its

behalf as its act and deed to

execute seal and deliver and other

wise perfect any deed, assurance,

agreement, instrument or act

which may be required or may be

deemed proper for any of the

• purposes aforesaid"

On the 12th May, 1975, the Bank

appointed Mr. Michael Gribben as

Receiver under the Debenture. The

instrument of appointment speci-

fying his powers set out the powers

conferred in the debenture including

that referred to above.

On 25th July, 1976, Mr. Gribben

contracted to sell to the I.D.A. part

of the lands comprised in the above

folio and purported to carry this sale

to effect by transfer dated 8th

October, 1976. Such transfer was

witnessed as follow:

"In witness whereof the common

seal of the Company has been

hereunto affixed by direction of

the Receiver as such receiver,

pursuant to the powers vested in

him as aforesaid and the Receiver

has signed his name and affixed

his seal and the common seal of

the Purchaser has been hereunto

affixed the day and year first

herein written"

Article 115 of Table A applied to

the use of the Seal by Company.

Article 129 of the Articles of

Association of the Company

provided for an official company seal

for use abroad under the provisions

of the Company's Act 1963. Article

100 provided as follows:

"The directors may from time to

time and at any time by power of

attorney under the seal appoint

any company, firm or person or

any fluctuating body of persons

whether nominated directly or

indirectly by the directors to be

the Attorney or Attorneys of the

Company for such purposes and

with such powers, authorities and

discretions (not exceeding those

vested in or exerciseable by the

directors under these Articles)

and for such period and subject

to such conditions as they may

think fit, and any such power of

attorney may contain such pro-

visions for the protection and

convenience of persons dealing

with any such attorney as the

directors may think fit, and may

also authorise any such Attorney

to subdelegate all or any of the

powers, authorities or dis-

cretions vested in him)

The Registrar of Titles was not

satisfied that the Receiver had power

to execute the transfer and the matter

was referred to court. Butler J held:

(i) The use and control óf the seal of

a company by the Receiver

which is not authorised by the

Articles of Association is not in

accordance with any valid power

and thus the fixing of the seal by

the Receiver was not a valid or

effective sealing by the Com-

pany to witness the transfer as its

deed.

(ii) A company has no power to act

by Attorney to execute deeds

within the State.

The reasons stated for so finding

was that the legislature found it

necessary in Section 40 of the

Company's Act 1963 to make

special provision to enable a

company appoint Attorneys and

hence that but for that section a

company has no such power.

Section 40 only permits the

appointment of an Attorney to

execute Deeds on behalf of a

company in any place outside the

State. Thus a company has no

power to appoint an Attorney to

execute deeds within the State.

(iii) The transaction cannot be

validated by Section 46 of the

Conveyancing Act 1881. This

Section provides that the doubt

of a Power of Attorney may

execute or do any instrument or

thing in and with his own name

and signature and his own seal

where sealing is required and that

every assurance, instrument or

thing so executed and done shall

be as effectual in law to all

intents as if it had been executed

or done by the donee of the

power in the name and with the

signature and seal of the donor.

As it was held above that a com-

pany c a nnot a ppo i nt an

Attorney to act on its behalf in

the execution of a deed within the

State, then the Section could

have no application to the

present case.

(iv) Thus the present transfer had not

been validly executed and was

thus ineffective to transfer the

legal estate in the property and

the Registrar's doubts in with-

holding registration of the

purchasers as full owners were

justified.

Mr. Justice Butler further ex-

pressed the following views as to the

position of the Bank as equitable

mortgagees of the property:

(i) In the case of unregistered land it

would appear that section 21 sub

section (1) of the Conveyancing

Act 1881 does not empower a

mortgagee having only an equit-

able mortgage by deed to con-

vey the legal estate.

(ii) For registered land, section 62 of

the Registration of Title Act

1964 grants the power to a regis-

tered owner of a charge to

transfer land in accordance with

that section and where he does

so, that the transferee should be

registered as owner of the land

and thereupon the registration of

a transfer for valuable con-

sideration by a registered owner.

(iii) Thus, the Bank as registered

owner of the charge in question

could sell and convey the full

legal estate of the registered

owner in the land.

Folio 43689 — Co. Cork Regis-

tered Owner: Cork Shoe Company

Limited — Application of Industrial

Development Authority: Dealing

Number S1603/78 — High Court

— Butler J. — unreported — 1st

May 1978.