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August 20 <fcSeptember 2.
Mortgage by executor—Title derived from executor—Sale by sole devisee ofjoint will—Competing titles.
Under the joint last mil of S and his wife, C the survivor was tobe the sole devisee. 1 After the death of S the executors proved thewill, and O, one of those executors, mortgaged certain propertybelonging to the joint estate to raise money for testamentaryexpenses. The mortgagebond was put in suit, judgment- recovered,and the mortgaged property sold and purchased by first defendant,who sold it to second defendant. C, who was well aware of thesale in execution, purported to convey the whole property to S,to whose title plaintiff ultimately succeeded—Held, that the seconddefendant’s title was superior to that oi the plaintiff.
npHIS was an appeal by plaintiff againt the judgment of theCoart below upholding the claim of the defendants to acertain land by prescriptive possession. The facts of the case, as
ALLIS v. MENDIS el al.D. C., GaUe, 3,490.
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1897. regards the title of the parties, are fully recited in the judgmentAugust 20 «*> of Withers, J.
Domhorst, for appellant.
Wendt, for respondent.
September 2, 1897. Withers, J.—
On the whole, I think it right to affirm this judgment. Thequestion which of the two parties had the better documentarytitle is not decided, because the Judge found his way to hold thatthe defendant had succeeded on the question of possession.Orelias was one of the proving executors of the joint will of DonSamuel Silva and Clara- Hamine, which was made on the 11thFebruary, 1869. Under that will the survivor was to be the soleresiduary devisee. Shortly after he entered upon the adminis-tration Orelias mortgaged certain property belonging to the estateto raise money for testamentary expenses. He recited that factin the mortgage, but signed the instrument simply in his ownname Orelias. It was not necessary that his co-executor shouldjoin in this mortgage.
The mortgage was ultimately put in suit in the District Courtof Galle, and the creditor had the property mortgaged judiciallysold. The sale took place on the 13th December, 1875. One-third of the land was released from seizure and only two-thirdsbought up by the judgment-creditor, excluding planter’s share ofthe second plantation. The decree-holder was the first defendant,and he delayed to take his transfer till July, 1884, which he registeredon the 24th January, 1886. Clara Hamine in February, 1876,brought an action against first defendant and the executorOrelias to set aside the sale of those two-thirds, but the actionfor some reason or another was discontinued. In January, 1882,Clara Hamine, who was well aware of this sale in execution,purported to convey to one Don Simon de Silva the whole of thegarden. In 1885 a creditor of the first defendant seized in executionthe first defendant’s interest in the garden, and Don Simon deSilva successfully opposed the sale, which was stayed on hisgiving security. Simon de Silva then mortgaged the land toone Endoris, who put the bond in suit in the Court of Requests ofBalapitiya. The entire land was seized, and in January, 1887, soldby the Fiscal, who conveyed to Endoris in October, 1887, and thelatter sold to the plaintiff. That was in March, 1894. In 1891the first defendant sold his interest to the second defendant, betweenwhom and the plaintiff arose a dispute about this land, whichwas the cause of this action. On these facts I am inclined
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to hold that second defendant has the better .title. The DistrictJudge, aB I said before, has found on the evidence that first defendantand the second defendant have enjoyed their two-thirds since 1876.In the conflict of evidence on this point I am not prepared to holdthat that was a wrong finding of fact. I would therefore affirm thejudgment.
August 20 «fcSeptember 2.
I agree with my brother that defendants taking from the executorhave a preferent paper title for the two-thirds which they claim.The consequence thereof would be that plaintiffs and their prede-cessors may have had residence on the land and possession of one-third, so that there would be in their evidence only an exaggerationof possession of one-third into that of the entirety. I do not seethe District Judge was wrong in holding defendants’ possession wasin accord with what we find was their preferent title.
ALLIS v. MENDIS et al