Irwin v Deasy [2011] IESC 15 (13 May 2011)

Irwin v Deasy [2011] IESC 15 (13 May 2011)

A judgment mortgagee of registered land does not have locus standi to seek an order for sale in lieu of partition under the Partition Act 1868 or section 71(4) of the Registration of Title Act 1964, as the registration of a judgment mortgage creates only a charge and not an estate or interest in possession. The court has no jurisdiction to grant such relief at the suit of a judgment mortgagee of registered land.

Citation
[2011] IESC 15
Parties
Plaintiff/appellant: Liam J. Irwin; Defendant/respondent: Thomas Deasy; Defendant/respondent: Carmel Deasy
Jurisdiction
Ireland
Judgment Date
13 May 2011
Procedural Posture
Civil Appeal / Supreme Court Judgment on Appeal From High Court
Outcome
appeal dismissed
Legal Topics
Partition of Land, Judgment Mortgages, Registered Land, Court Jurisdiction, Sale in Lieu of Partition
Property Law Civil Procedure Partition of Land Judgment Mortgages Registered Land Court Jurisdiction Sale in Lieu of Partition

Case Brief

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Parties

Liam J. Irwin

Plaintiff/appellant

Thomas Deasy

Defendant/respondent

Carmel Deasy

Defendant/respondent

Procedural Posture

Civil Appeal / Supreme Court Judgment on Appeal From High Court

Legal Issues

  1. 1 Whether a judgment mortgagee of registered land has locus standi to seek an order for sale in lieu of partition under the Partition Act 1868 or section 71(4) of the Registration of Title Act 1964.
  2. 2 Whether section 71(4) of the Registration of Title Act 1964 confers jurisdiction on the court to order sale in lieu of partition at the suit of a judgment mortgagee of registered land.

Ratio Decidendi

A judgment mortgagee of registered land does not have locus standi to seek an order for sale in lieu of partition under the Partition Act 1868 or section 71(4) of the Registration of Title Act 1964, as the registration of a judgment mortgage creates only a charge and not an estate or interest in possession. The court has no jurisdiction to grant such relief at the suit of a judgment mortgagee of registered land.

Court Disposition

appeal dismissed

Orders

  • Appeal dismissed
  • Order of the High Court affirmed