The Gazette 1978

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MAY 1978

GAZETTE

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.

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.

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:

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

"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

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