Irwin v. Deasy [2004] IEHC 104 (1 March 2004)

Irwin v. Deasy [2004] IEHC 104 (1 March 2004)

A judgment mortgagee of registered land does not acquire an interest entitling him to partition or sale in lieu of partition under the Partition Act, 1868, but the court has discretion under s. 71(4) of the Registration of Title Act, 1964 to grant analogous orders for enforcement of the charge, provided all co-owners are joined and relevant facts are established.

Citation
[2004] IEHC 104
Parties
Plaintiff: Liam J. Irwin; Defendant: Thomas Deasy; Co Owner, Served With Notice: Carmel Deasy
Jurisdiction
Ireland
Judgment Date
01 March 2004
Procedural Posture
Special Summons / Judgment
Outcome
Plaintiff entitled to well charging and payment orders; application for sale in lieu of partition refused unless co-owner is joined and further facts provided.
Legal Topics
Judgment Mortgage, Partition, Registered Land, Enforcement of Charge
Property Law Civil Procedure Judgment Mortgage Partition Registered Land Enforcement of Charge

Case Brief

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Parties

Liam J. Irwin

Plaintiff

Thomas Deasy

Defendant

Carmel Deasy

Co Owner, Served With Notice

Procedural Posture

Special Summons / Judgment

Legal Issues

  1. 1 Whether a judgment mortgagee of registered land is entitled to an order for sale in lieu of partition under s. 71 of the Registration of Title Act, 1964
  2. 2 Whether the court has jurisdiction to grant such an order in the absence of the co-owner as a party
  3. 3 Whether the registration of a judgment mortgage severs a joint tenancy

Ratio Decidendi

A judgment mortgagee of registered land does not acquire an interest entitling him to partition or sale in lieu of partition under the Partition Act, 1868, but the court has discretion under s. 71(4) of the Registration of Title Act, 1964 to grant analogous orders for enforcement of the charge, provided all co-owners are joined and relevant facts are established.

Court Disposition

Plaintiff entitled to well charging and payment orders; application for sale in lieu of partition refused unless co-owner is joined and further facts provided.

Orders

  • Declaration that judgments are well charged on defendant's interest in Folio 8249 Co. Cork
  • Order for payment of sums due on judgments with continuing interest