The Gazette 1980

JULY-AUGUST

1980

GAZETTE

money to be applied towards the dis- charge of the mortgage debt; that as between the two claimants, the Plain- tiffs were first in making their claim and, therefore, should have priority over the Bank; and, that the Plaintiffs' claim should have priority because the Plaintiffs had a judgment which entitled them to execute forth- with, whereas the Bank had only got a cause of action. Held (per McWilliam J.):- That the Bank had a statutory right under Section 23 (4) of the 1881 Act to have the insurance money applied towards discharge of the mortgage debt and had, in exer- cise of that right, given notice to the Sun Alliance before the date of the fire; and that Section 23 (4) was not restricted to insurances effected under a mortgage deed or under the 1881 Act, as was the position under Section 23 (3); and that this dis- tinction between Section 23 (4) and Section 23 (3) was recognised in the cases of In the matter of J. E. Doherty, a bankrupt, [1925] 2 I.R. 246 and Halifax Building Society v.

provision in addition to the reference to a covenant as to the application of the insurance money". Brendan Myler and Carmel Myler v. Mr. Pussy's Nite Club Limited, Liam Ledwich, Alan Amsby and Tony Keogan (Defendants) and Allied Irish Banks, Third Party - High Court (per McWilliam J.) 11 December 1979 — unreported.

Keighley [1931] 2 K.B. 252; that in each of those two cases the mort- gage was by deed and it had hitherto normally been assumed that the 1881 Act only applied to a mortgage by deed, but that clause (vi) of Section 2 of the 1881 Act defined "mortgage" as including any charge on property for securing money or money's worth, and that an equitable charge by deposit of title deeds was a charge on property for securing money. In his judgment the judge also referred to the current (4th) edition of Halsbury's Laws of England, Vol. 17, p. 522, para. 1032, which stated that a contract of fire insurance was a personal contract which did not pass with the property and that where mortgaged property had been insured by the mortgagor and was destroyed by fire, that the mortgagee was not, in the absence of a covenant as to the application of the insurance money, entitled to have it applied in payment

Summaries of Judgments prepared by: John Gore-Grimes, William J. Maguire, Michael Staines and edited by Michael V. O'Mahony.

of the mortgage debt. (Per McWilliam J.):

" . . . the principle stated in Hals- bury ought to be read so as to in- clude a reference to a statutory