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Present : Bertram. C.J. and De Sampayo J.ADICAPPA CHETTY v. NEGBIS.t
77—De C. Colombo, 48,520.
Mortgage ofmovc&les^Subsequentacquisition of ownership—Second
mortgage—Priority—Ordinance No. 8 of 3871.
A executed a mortgage of *a printing. press in favour of Bbefore the property in the press had actually passed to him (A).After becoming owner, A again mortgaged the press to C. Bothmortgages complied with the requirements of Ordinance No. 8of 1871.
Held, that the mortgage in. favour of B was entitled to priority.
'Where a person who is not the owner of a movable propertymortgages it and subsequently acquires ownership the mortgage•becomes valid.
rJ*HE facts appear from the judgment.
A. St. V. Jayawardene, for the appellant.
Bawa, if.(7.,'for the respondent.
October,22, 1918. Bertram C.J.—
The question to be determined in this case is a question ofpriority between two mortgagees of movable property. It relatesto a printing press which was purchased by one Vince, andmortgaged by him successively, in the first place, to the claimant,and, in the second place, to the plaintiff. The first mortgagewas dated September 9, 1916, and the second mortgage March7, 1917. With regard to both mortgages, the requirements ofOrdinance No. 8 of 187i were complied with. The first mortgagein favour of the claimant was executed before the property inthe printing press had actually passed to Vince. The secondmortgage was executed after the property had so passed by virtueof a formal transfer on January 10, 1917.
The question is, Which of these two mortgages under the circum-stances is entitled to priority? The question is settled definitelyand expressly by a statement of the law in Voet 20, 4, 31: Quod sipriori a non domino pigrms devinctum fit, posteriori autem tlludipsum ab eodem, sed jam domino facto, adhuc prior potior est: eoquod ipso primo dominii acquisiti momenta firmatum priori fuitpignoris ius. I quote from Berwick's translation:- 11 But if apignus has been first bound to one person by one .who was not the
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owner, and then again to another person by the same mortgagor,but subsequently to his having become the owner, the first mortgageeis still preferential, because the right of pledge was confirmed tothe first mortgage from the moment of the mortgagor’s acquisitionof the ownership.”
It will be thus seen that the passage cited from Voet is directlyin point. The passage enunciates an example of a principle oi theHoman law, sometimes referred to as that of the “ convalescenceof mortgagees. That principle is that if a mortgage of movableproperly is executed by a person who is not the owner, thatmortgage is legally invalid. If, however, the mortgagor subse-quently acquires the ownership, that invalidity is removed. Themortgage gathers force, and from the moment of the acquisition ofthe ownership it becomes good. That is the recognized principleof the Homan law.
The next question is, Whether that is in any way affected bylocal legislation? It is contended by Mr. Bawa that, in view of theprovisions of Ordinance No. 8 of 1871, that principle is no longer inforce in Ceylon. He urges that on the analogy of certain decisionsgiven by this Court with regard to Ordinance No. 7 of 1840, weshould hold that, unless a mortgage is given in accordance withthe conditions of Ordinance No. 8 of 1871, and is also in fact other-wise valid at the time when it purports to comply with thoseconditions, it can have no effect. It is not necessary for us todiscuss the conflicting decisions under Ordinance No. 7 of 1840.We need only confine ourselves to Ordinance No. 8 of 1871. I amnot able to give it the construction which Mr. Bawa contends for.It seems to me that all that Ordinance No. 8 of 1871 does is to laydown certain requirements of form. It requires either that theproperty mortgaged shall be delivered, or that the mortgage shallbe carried out in a particular way, and shall be registered in aparticular way. The Ordinance is not concerned in any way withthe validity of a mortgage apart from these requirements. If amortgage complies with these requirements, the Ordinance hasnothing whatever to say to it. It seems to me, therefore, that thereis nothing in the Ordinance inconsistent with the principle of theHoman law known as that of the “ convalescence ” of mortgagees.If a mortgage, previously invalid, may, in certain’ circumstances,acquire validity, then, if it is executed and recorded in the mannerprescribed by this Ordinance, there is nothing in the provisionsof the Ordinance to interfere with that process. So much for theeffect'of Ordinance No. 8 of 1871.
Another question has been raised, namely, the question of estoppel,Mr. Jayawardene contended that even if he had not priority byvirtue of this principle of the Homan law, nevertheless the secondmortgagee, as a person claiming from the mortgagor, was estoppedby the conduct of that mortgagor from alleging' that that mortgagor
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cur.-.,Adioappa' f v.
Bad not a title at the date of the mortgage. It is unnecessary forus to decide that question, inasmuch as it is clear that, under theprinciple above explained, the claimant has a prior right by virtueof his priority in date.
For the reasons I have explained, I would allow the appeal, with
De Sampayo J.—I agree.
ADICAPPA CHETTY v. NEGRIS