The Supreme Court has dismissed a Revenue appeal seeking a sale of jointly owned registered land to enforce judgment debts against one co-owner’s interest.
In a judgment delivered on 13 May 2011, Mr Justice Finnegan said neither the Partition Act 1868 nor section 71(4) of the Registration of Title Act 1964 gave the court jurisdiction to order a sale in lieu of partition in those circumstances. The court affirmed the High Court order.
The proceedings concerned 19.513 hectares of registered land in County Cork, held as joint tenants by Thomas Deasy and Carmel Deasy. The judgment said the land was not a family home within the meaning of the Family Home Protection Act 1976. The Revenue appellant had registered three judgment mortgages affecting Mr Deasy’s interest and sought payment of the judgments. If payment was not made, it sought a sale of the entire property in lieu of partition.
The High Court made a well-charging order in 2004 and joined Mrs Deasy to the case. In 2006, the High Court refused the requested sale, finding it lacked jurisdiction to order a sale in lieu of partition at the suit of a judgment mortgagee in this position. The appeal addressed that legal question. The Supreme Court noted that the action had since settled and that the appellant asked it to rule on whether the relief would have been available but for the settlement.
The appellant argued that a judgment mortgagee should have equivalent partition-related remedies whether land was registered or unregistered, and that section 71(4) gave the court power to enforce a charge through such an order. The respondents argued that a judgment mortgage over registered land created a charge only, without transferring an interest in the property, and that the statutory provision did not grant the power sought.
The Supreme Court held that a judgment mortgagee of registered land was not entitled to seek partition or a sale in lieu of partition under the 1868 Act. It also rejected the argument that section 71(4), which allows rights and remedies for enforcement of a charge to be conferred by court order, supplied that jurisdiction. The judgment acknowledged a difference between remedies involving registered and unregistered land, but said it was for the legislature to address it.
The court dismissed the appeal and affirmed the High Court order. The decision concerned the specific remedy sought: sale of the entire property in lieu of partition. It did not make a fresh order for sale or partition.