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DE MEL v. FERNANDO.
D. C., Colombo, 9,391.Fiscal’s sale—Execution on money decree—Purchaser of land seized in executionof such decree—Suit to realize mortgage in respect of same land—Purchaser of hypothecated land—Rival claims of the two purchasers—Priority of conveyance and registration—Effect of registration under awrong name—Ordinance No. 8 of 1863, s. 39.
D. M., being a simple creditor of J. H. Q., obtained judgment againsthim and caused the Fiscal to seize his share in a property cal.edUdupitiyagoda estate. At the sale in question D. M. became purchaserof his debtor’s share under deed dated 22nd January, 1885, which wa9registered on 1st February, 1887.
In 1881 J. H. G. and C. L. G., the joint ownera of the said estate, hadmortgaged it to J. P., who put the bond in suit on the 22nd November,1886, without making D. M. a party thereto. At the sale in execution ofthis mortgage decree, R. S. P. bought the whole estate under deeddated 24th September, 1887, which however was not registered till29th June, 1896, R. S. P. conveyed the estate to J. P. by deed dated11th November, 1891, and J. P.’s executor sold it to F. by deed dated25th March, 1895.
Held, in an action brought by D. M. against F. to recover possessionof the share bought by him under deed dated 22nd January, 1885, that,though the plaintiff had bought that share and registered his conveyanceprevious to the purchase and registration on the part of R. S. P., thedefendant’s predecessor in title, and though plaintiff Was no party tothe original hypothecary suit, yet the title of the defendant wassuperior to that of the plaintiff.
Per Monoreut, J.—As the conveyance tendered by the plaintifffor registration did not mention the real name of the land conveyed andassigned boundaries which could not be identified, so that the con-vevanee Was registered in the wrong book, I am inclined to think that itwas not registered, that the plaintiff was to blame for its non-registration,
July 4 andSeptember 25.
and that his deed was void, under Ordinance No. 8 of 1863, section 39,as against the only registered deed of the defendants.
CTION rei vindicatio. Plaintiff alleged that J. H. Grenier
and C. Li Grenier were entitled to a land of about 142 acresby virtue of a Crown grant; that under a writ of executionissued against j. H. Grenier a defined portion of the said land wasseized and sold by the Fiscal on the 2nd July, when plaintiffbecame the purchaser thereof, and the Fiscal granted to him aconveyance dated 22nd January, 1885, which was -registered onthe 1st February, 1887; that the plaintiff was placed in possessionand continued to hold the land till the defendants took unlawfulpossession of the said portion in June, 1895. Plaintiff prayed forejectment of defendants and for a declaration of title in his favour.
The defendants pleaded that the Greniers had in 1881mortgaged the land in question to one Jeronis Peiris, and thatthe debt being unpaid the mortgage-creditor recovered judgmentagainst them and caused the Fiscal to sell the land, when It. S.Peiris became the purchaser under deed dated 24th September,1887, which was registered on 29th June, 1896; that E. S. Peirisconveyed it to Jeronis Peiris by deed dated 11th November,1891; that Jeronis Peiris died in 1894, and his executor sold theland to the second defendant, wife of the first defendant, by deeddated 25th March, 1895, since when they have been in possession.
The District Judge, after evidence heard, found that the Fiscal’sconveyance to E. S. Peiris, though dated 24th September, 1887,was not registered till June, 1896, till after Jeronis Peiris’sexecutor had sold the land to defendant on the 25th March, 1895,by a conveyance registered in June, 1895. He held that plaintiffshad proved their title to the land “ subject to considerations as tothe bond granted by the Greniers, the rival registrations, and thequestion of improvements made by the defendants.”
As regards these considerations, he was of the followingopinion:—
“As to the bond, it appears to me that the cases cited in 3 C.L.R.71 and 75 are entirely applicable, and that plaintiff’s title is not atall impaired by the fact that, when he purchased in execution ofhis money decree, the land was subject to a registered mortgagewhich was put in suit on 22nd November, 1886, after the Fiscalhad made conveyance to him of one of the mortgagor’s rights tothe land and before he had registered his conveyance. The onlyway in which their title, derived direct from the mortgagor, couldbe reached, reduced, and perhaps annihilated, would be by anhypothecary action and decree declaring the land liable to be madeexigible for satisfaction of the mortgagee’s writ.
July 4 andSeptember 26,
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“ I have no note of any previous decision upon a questionarising out of a double registration of a land through somebody’smistake in description of its name, locality, boundaries, &c. It isnot alleged that it occurred through any fraud; and in the case ofan error, pure and simple, I hold that the registration is notvitiated thereby.
“ The Crown originally granted the 142 acres for a considerationof Es. 1,430. At the Fiscal’s auction of July, 1883, plaintiffbought of these 54 acres for Es. 150, and at that of July, 1887,defendant’s predecessor in title bought the 142 acres for Es. 511(the mortgage decree being for Es. 2r765). Defendant’s expendi-ture account for its conversion into a tea estate amounts toEs. 51,314.86. This includes such charges as books, ink, and penEs. 35; trips Es. 443; digging plumbago Es. 556 (no sales thereofore credited); rearing poultry Es. 10 (no credit for sale orconsumption of eggs or birds); tea boxes Es. 37; ‘ coals for curingtea ’ Be. 1.20; tea leaves purchased Es. 302. I should think thisaccount would require vigorous pruning to ascertain how muchcould be properly debited to ‘ improvement of jungle into teagarden ’ account. The receipts are Es. 2,230, of which Es. 1,258is from sale of leaf, which as a fruit of the expenditure shouldnot be credited to the account. I doubt if the village goiya wouldever himself have made so great an expenditure, or if I shoulddeem the land had been improved by such expenditure on it, to solittle profit, at all events at present. No evidence of its presentmarket value has been given save that defendants believe it to beworth Es. 80,000, of Es. 563 per acre. After this lapse of timethe chances of an hypothecary action against plaintiff now areso small that I do not see it is proved he has benefited by thepayment of the mortgage to an extent (per acreage) of.of Es. 511, say Es. 124, so that the payment of the mortgage(though Es. 511 did not satisfy the mortgage decree of Es. 2,765and interest) should be reckoned as an impensa, utilis. Besides,if an hypothecary action was ever maintainable against him, hedid not benefit by the payment.
“ I hold that plaintiff is entitled to an undivided moiety of somuch of the 142 acres as lies west of the line of the pathwaydelineated in Mendis’s survey dated 25th October, 1884, and toEs. 20 nominal damages and to the cost's of this action.”
The defendant appealed. The appeal came on for argumenton 4th July, 1900.
Wendt, Acting A.-6., and Bawa, for appellant.—Plaintiff wasprivy to the Greniers, the mortgage-debtors of Jeronis Peiris, whoseaction was raised before the Fiscal’s transfer in favour of the plaintiff
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was registered. The case of Abeyagunawardann v. Andris (3 C. It. 1900.R. 71) and that of Silva v. Vparie (ibid, p. 7S) are distinguishable
from the present ease, since in those cases the conveyance made by
the mortgagor had been registered before the action institutedto realize the mortgage, and therefore the mortgagees were fixedwith notice. Defendants have priority over plaintiff’s conveyanceunder Ordinance No. 8 of 1863, sections 37, 38, and 39.
In any case the defendants are entitled to compensation forimprovements.
Sampayo, with him De Saram, for respondent.
Cut. adv. vult.
25th September, 1900. Bonser, C.J.—
I am of opinion that the appeal must be allowed. The questionto be decided is, whether the purchaser of hypothecated land ata sale by the Fiscal in execution of a decree in a suit to realize themortgage, or the purchaser at a sale by the Fiscal of the same landin execution of the judgment of an unsecured creditor against themortgagor, has the better title.
The former is in possession, and the latter seeks to dispossesshim, alleging that the title is in himself.
The sale to the latter was prior in date to that to the former, sono question of priority of registration arises. It is not suggestedthat, at the date of the sale under the hypothec, the mortgagemoney was not due, and that therefore the decree and the salethereunder were not justified. That being so, I am of opinionthat the sale under the mortgage gave the purchaser a title superiorto that of the plaintiffs, who claim under the mortgagor, and thatthe defendants, who claim under that purchaser are entitled toretain the land as against the plaintiffsMonc"eiff, J.—
In 1881 the brothers Grenier mortgaged an estate called Udu-pitiyagoda. The mortgage deed was registered in 1882, theFiscal’s sale and conveyance to the mortgagee passed in 1887, andthe second defendant bought the property in 1895.
In 1882 the plaintiffs obtained a decree against J. H. Grenier,who held an undivided half of Udupitiyagoda. Under that decree54 acres, out of 142, of the land were seized and sold by the Fiscal,the plaintiffs becoming the purchasers and registering their con-veyance on 1st February, 1887.
The plaintiffs never were, as I believe, in possession of theproperty: their claim was unknown to the defendants. Thehypothecary suit on the mortgage bond was begun before theconveyance to plaintiff was registered, and the plaintiff wasbound by the decree in that suit.
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July 4 andSeptember 25.
J. The defendants further urged that their Fiscal’s conveyancewas registered on the 29th June, 1896, and that although the Fiscal’sconveyance of the plaintiff purported to have been registered onthe 1st February, 1887, the registration was void as against thesubsequent deeds duly registered.
Inasmuch as the conveyance tendered by the plaintiff for regis-tration did not mention the real name of the land conveyed, andassigned boundaries which could not be identified, so that theconveyance was registered in the wrong book, I am inclined tothink that it was not registered, that the plaintiffs were to blamefor its non-registration, and that by virtue of Ordinance No. 8 of1863, section 39, it was void as against the duly registered deed ofthe defendants.