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iW2*Present : Bertram C.J. and Sehneider J.
APPUHAMY et al. v. BABY SINGHO.
101—D. C. Galle, 18,853.
Assignment of a usufructuary mortgage—Mortgage of the land 6y theassignee as though he were the owner—Land sold by auctioneer—Conveyance of land to purchaser—Right of purchaser to take theproduce.
Plaintiff executed a usufructuary mortgage of* the land in favourof T. T assigned this mortgage to J. J executed in favour of P-what was apparently intended to be a mortgage of his mortgagerights. The deed, however, purported to mortgage the landsoriginally mortgaged by the plaintiff as though J was the owner.P put the bond in suit, and under the decree the land was sold byan auctioneer, who conveyed the land itself to the purchaser.
Held, that the purchaser under this deed acquired the usufruc-tuary rights of J to take the produce of the land in lieu of theinterest on the mortgage debt.
TP HE facts are set out in the judgment.
Samarawitfcreme (with him M. W. H. de Silva), for plaintiff,appellant.
W. Jayawardene (with him Samarakoon), for defendant, res-.pondent.
September 19, 1922. Bertram C.J.-—■
This was an action by way of rei vindicatio on the part of theplaintiff, who is admittedly the owner of the land. In 1889, by D 1,he executed a usufructuary mortgage of the land to one Thomis.In 1912 Thomis assigned this mortgage to Johanis. In 1915 Johanisexecuted in favour of Podinona what was apparently intended tohe a mortgage of his mortgage rights. T^e deed in fact, however,purported to mortgage the lands originally mortgaged by theplaintiff as though Johanis was their owner. Certain words were,.however, added with reference to the mortgage debt, so that thedeed concluded as follows: " These properties and the amount,which was kept for safety in the herein said deed bearing No. 7,088,together with all the right and title which I have thereto, do herebymortgage and hypothecate, &c.” It was admitted by Mr. Samara-wiokreme, who appeared for the appellant, that the inclusion ofthe words "the amount which was kept for safety, <Sro.,’’ may be
regarded as an assignment of the mortgage bond by way of amortgage. Podinona put this bond in suit and recovered judgment.There can be no doubt that, had the proper formalities been observed,the Fiscal could have seined the mortgage debt and the right tohave the land realized for the purpose of discharging it. He didnot do so, however. What happened was that an auctioneer'stransfer was executed which purported to convey the land itself.The property sold was set out in the schedule, but in the body ofthe deed it was declared that what was granted and conveyed tothe purchaser was all the property appearing in the schedule,“together with all easements, rights, and advantages whatsoever,
&aand all the estate, right, title, interest, claim, and
demand whatsoever of the said Johanis” in the property.
Now, the question that arises is whether the purchaser undertins deed acquired the usufructuary rights of Johanis to take theproduce of the land in lieu of the interest on the mortgage debt.Mr. Samarawickreme has contended that no such rights pasted tothe purchaser. He says that these usufructuary rights are purelyancillary to the mortgage debt, and can only exist in conjunctionwith Jhe mortgage debt. He contends, therefore, that .they didnot pass to the purchaser. In my opinion this contention is erro-neous. It is quite true that in a mortgage there are certain rightswhich are ancillary to the main obligation, and can only exist Withthat obligation. I refer particularly to the right to have the landsold for realization of the debt, but the right to take tjje producein lieu of interest is not a right of this description.^
It must be conceded that if a man is indebted to 'me, and the debtcarries interest, I may assign to others the debt and . the interestseparately. The right to take the produce of a land, subject to amortgage in lieu of interest, is only a way of collecting the interest.I fail to see why, if this right may be assigned separately, it shouldnot pass separately in execution if appropriate words are used forthe purpose. It is quite true that when once the mortgage debtis paid, the right to take the -produce disappears, but so long as themortgage debt exists this right to take the produce is an interestin the land.
Now, what does the auctioneer’s transfer purport to convey inthis ease? It purported to convey the dominium of the land,but Johanis had not the dominium. He had certain rights whichare essential to the dominium, but only constitute one or morestrands out of the bundle of rights which go to make up the dominium.He had the right fructus percipiendi; it may be, said also that behad the right utendi …. These are constituent parts ofthe whole dominium, see Vanderlinden.1 What actually passedby the mortgage deed was the interest of Johanis in the property,and these particular rights, as my brother put it, were caught up
1 Institute of Holland : Bk. 1, chap. VIIS. I.
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1982. by tbe general Bale of the dominium and passed to the purchaser,Bektbam although the dominium did not so pass. It is clear law that aCU.usufructuary mortgagee can lease his usufructuary rights. I can
Appuhamt/ see no objection to those usufructuary rights existing in a persont>. Bobu other than the mortgagee or an assignee of the mortgagee. It seemsSingho j.0 me^ therefore^ that they passed by the sale, and that Mr. Samara-wickreme’s legal point on which he rests his claim is not sound.
There is another point which is also fatal to him, and that is this:
This is an action tei vindicatio. It implies that the plaintiff isentitled to the possession of the land, but the right to the possessionof the land has passed from him for the time being, and in anyview of the case either in Johanis or in tbe defendant. NeitherJohanis, nor the defendant, nor anybody else, contest his title tothe dominium subject to the mortgage. Mr. de Silva relied' uponthe case of Allis Appu v. Endris Hamy.1 In that case the ownerwas allowed to assert his rights in spite of the fact he had leasedthe land against a person who was challenging his whole title. Thisperson is said to have prevented him from exercising his proprietaryrights during the existence of the lease, because his proceedingshindered the ownei; from disposing of his rights4, had the effect ofimposing a blot upon his title. There is nothing of the sort here,and I think these facts distinguish this case from the one cited. Inany case, the first point, is fatal.
; Mr. de Silva says that'if he is unsuccessful in this action, it is.conceivable that the purchaser may prescribe against him. I donot think that there is any real danger of this soft, but, as Mr.•Jayawardene sees no objection, I think that plaintiff. might bedeclared entitled to the possession of the land on discharge of themortgage debt.
Subject to this, I think the present appeal should be dismissed,with costs.
Schneider J.—I agree.
(1894) 8 S. C. Report* 87.
APPUHAMY et al. v. BABY SINGHO