The Gazette 1990

GAZETTE

A PRIL 1 9 90

were due on that date then the family home was encumbered only to that extent". 16 It is clear from the Supreme Court's judgment at least that a mortgage by deposit is not redeemed simply by the fact that no money is owing at a particular moment; however the mortgagee's interest in such a case is reduced to the point where it ceases to be a mortgage and becomes a "bare equitable interest". It appears that the mortgage will be revived automatically if a further advance is made (a conclusion also reached by Lynch J. in Bank of Ireland -v- Coen) and the rights of a mortgagee may thereafter be enforced as before. The law on this point now appears to be settled, though not with the clarity one would wish for. The other issue raised by Bank of Ireland -v- Purcell is how far the definition of a further advance as a "conveyance" would be extended. By bringing such advances within Section 3 of the Family Home Protection Act, 1976, the decision has already had the effect of rendering void a very large number of equitable mortgages; if the further advance is a conveyance for other purposes also, it is not easy to foresee the consequences. For example, in Purcell the Plaintiff relied on the doctrine of "tacking" i.e. that for the purpose of priority in registration further advances under a Mortgage for present and future advances are part of the original mortgage; the doctrine was considered by Barron J. but found to be inapplicable. Since the further advance is now a separate conveyance for some purposes, will this alter the priority of mortgages? On balance the answer is probably no; in Purcell the Supreme Court drew a sharp distinction between remedial and conveyancing statutes and held that the former must be interpreted as widely as necessary to give effect to their purposes; by implication therefore, a conveyancing statute may be intrepreted literally. This suggests that the settled law of mortgages will not be disturbed further than necessary to give effect to any relevant remedial statute. Overall one's main impression of the law of equitable deposit is its informality and lack of settled rules. In theory this accords with the

notion that such deposits are a matter for agreement between the parties. In practice, given that such agreements are normally weighted heavily in favour of the mortgagee, the failure to spell out the terms puts a havey burden on the mortgagor especially as such mortgages rarely, if ever, contain any express provision for redemption. Where clear written terms are not agreed, it is advisable, as Kennedy C.J. thought 17 that the transaction be explained as clearly as possible to the mortgagor. NOTES 1. (1934) L.J.Ir. 89. 2. [1934] L.J.Ir 89 to 90. 3. Irish Land Law (2nd Edition) paragraph 12-44. 4. [1931] I.R. 368. 5. [1931] I.R. 3 68 at 373. 6. [1931] I.R. 268. 7. It should be said that both Ryland's Digest and Wylie's Irish Land Law seem to be in some confusion as to what the case actually decided; in particular one might gather from Wylie (Note to paragraph 12:44) that the decision went the other way. 8. See Fisher and Lightwood on Mortgages (10th Edition) at p.67 and the cases there cited. 9. Lynch J., 11th November, 1988, Unreported. 10. Firth & Sons Ltd. -v- Commissioner of Inland Revenue [1904] 2 K.B. 204. 11. [19731 I.R. 188. 12. [1973] I.R. 188 at 191/2. 13. At page 5 of his Unreported Judgment. 14. Supreme Court 2 4 th July, 1989, Unreported, affirming [19881 I.L.R.M. 480. 15. [1988] I.L.R.M. 4 80 at 482. 16. At page 7 of the Judgment of Walsh J. (nem dis.) 24th July 1989 Unreported. 17. See Bank of Ireland -v- Macaura above.

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