The High Court has refused the remaining relief sought by a judgment creditor who asked for jointly owned Cork farmland to be sold to enforce mortgages registered against one co-owner’s interest. The court held it had no jurisdiction to order a sale in lieu of partition in those circumstances.
The ruling, delivered by Miss Justice Laffoy on 31 January 2006, concerned 19.513 hectares of farmland near Clonakilty, with farm buildings and a refurbished house. The judgment said the land was not, and had never been, the defendants’ family home. It was described by the second defendant as the first defendant’s main farm holding, used for dairy, poultry and farming businesses.
The plaintiff had registered three judgment mortgages against the first defendant’s interest in the land. In an earlier judgment, delivered on 1 March 2004, the court declared the mortgages well charged on that interest, determined the principal sums at €457,793.81 plus interest, and ordered that the second defendant be joined to the case. By 24 June 2005, the amount due was said to be in the region of €650,000.
After the second defendant was joined, the remaining application sought payment by the first defendant and, if payment was not made, a sale of the land in lieu of partition. The second defendant challenged the court’s jurisdiction to order such a sale. The first defendant opposed a separate proposal to sell only his interest, arguing that this relief had not been pleaded, that there was no authority for it and that his interest would not realistically be saleable on its own.
Justice Laffoy concluded that a judgment mortgage over one co-owner’s interest in registered land did not give the creditor a sufficient interest to bring a partition suit. The statutory power to order a sale in lieu of partition could not be used without that standing, and the court found no separate jurisdiction under the Registration of Title Act 1964 to order a sale affecting the other co-owner’s property rights. The judgment said any legislative gap was for the legislature to remedy.
The court did not decide the second defendant’s alternative argument that there was good reason to refuse a sale even if jurisdiction existed. It made observations about that issue, including that the evidence would not have established such a reason, but those observations were not a determination on the alternative submission. The court refused the remainder of the plaintiff’s application. The earlier declaration and determination of sums due were not set aside by this ruling.