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MARIKAB v. MARIKAR.D. C., Chtlaw, 1,493.
Joint debtors—Payment of debt by one of them—Bis rights against land mort-gaged to the paid off creditor by the other debtor—Effect of such debtoralienating such land—Claim by alienee.
Defendant and her mother, A, were co-debtors on a bond whereby Ahad mortgaged a parcel of land belonging to her. Defendant paid thedebt out of his own funds, and' sued A for her moiety. She made nodefence, and a decree was entered for the money so due with a declarationthat the land was bound and executable for it. Defendant caused theland to be seized in execution, but, before sale, A died, having donatedthe land to another of her sons, the plaintiff, reserving to herself a lifeinterest. Plaintiff was appointed legal representative of A’s estateunder section 341 of the Civil Procedure Code. Defendant thereuponcaused the land to be re-seized, and plaintiff claimed it under section 247of the Procedure Code—Held, that the land was liable to be sold underthe decree in defendant’s favour.
HE facts of the case sufficiently appear in the judgment ofLawrie, A.C.J.
W. Pereira, for appellant.
Dornhorst, for respondent.
The mother of these parties borrowed money and gave a mort-gage over !her lands; her son, the defendant, was a co-debtor onthe bond.
In 1889 the defendant paid the debt out of his own. funds.Afterwards (I think in 1894) he brought an action against his•mother for her part of the debt which he had paid. She made nodefence to the action. Two decrees were entered: one a moneydecree,v the other declaring the land bound and executable as underthe mortgage.
The judgment-creditor caused the land mortgaged to be seizedin execution. The mother died before a sale was effected. Upto her death she remained in possession. After her death her otherson (the present plaintiff) registered a deed of donation to himfrom his mother, dated 1893.
As the decree had not been executed before the judgment-debtor’s death, the plaintiff was appointed legal representativeunder section 341 of the Code.
Then the judgment-creditor caused the land to be again seized.The plaintiff, relying on his deed of donation, claimed the land.His claim was not upheld. Hence this action under section 247,for declaration that the land is his and is not liable to be soldunder the decree obtained against his mother.
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It was a donation to take effect after the donor’s death. It wasa donation without other consideration than affection by a motherto her son. She was at the time indebted to another of herchildren. Did she by the donation put the land beyond the reachoi him to whom she was then indebted? In a judgment of theFull Court in 1872 delivered by Sir Edward Creasy (Ram. 1892,j 69) our law on the subject was stated to be : “ An alienation by* gilt may be set aside when a man gives away the whole or a“ consideirable portion of his estate knowing that he is insolvent,
" and that he is diminishing the substance out of which his debts“ might be paid. He who acts thus will be considered to have“ intended the natural results of his acts, which is the defrauding“ of his creditors.”
In connection with this we should read the dictum of anotherChief Justice, that “ fraud in a legal sense is an act unwarrantable“ in law to tha prejudice of a third party, and not that crafty" villainy or grossness of deceit which it is applied in common"language ” (Ram. 1875, p. 182). It may be that at the date ofthe donation the lady did not remember that she owed a debt toher younger son; it may be that he did not then mean to insist onpayment.
If she had not given all her property to her son, the plaintiff, herother son, might not have insisted on his right as a creditor; butfinding that his mother by a quasi testamentary donation hadexcluded him from the succession altogether, he was within hisrights on insisting on payment; and his mother, by allowingjudgment to go against her, acknowledged that she had been indebt at the data of the donation. On the principle that debt mustfirst be paid I would affirm this judgment, which holds the landsto be liable on an unsatisfied decree obtained against the donor inher lifetime.
I would prefer to affirm this decision for the reason that theplaintiff is not shown to have been under any legal obligationwhatever, as by his having taken administration to his mother’sestate, to have assented to have been made defendant in the1action against his mother, his donor, under the provisions ofsection 341 of the Civil Procedure Code. Rightly or wrongly, amortgage decree was entered against his mother, and it still standsagainst her and those who claim under her. She might haveclaimed that the payment of the original mortgage by her son andco-mortgagor, the defendant, without his obtaining cession of actionwas a payment intended to enure to her hereafter as well as his,
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especially when by his subsequent deed on which plaintiff relies,she intended a benefit to come to defendant as well as to plaintiffout of this land.
But she did not so claim expressly or by implication. On thecontrary, she suffered defendant to obtain a mortgage decree againsther and did not. resist the seizure in her lifetime. Could shethereafter have been heard to prefer a claim sq long as she allowedthat decree to stand? And can plaintiff, as her voluntary, legalrepresentative for a special purpose, be allowed to do so for hisown benefit? I think not.
Moreover, plaintiff, by his conduct in so accepting the status quoat her death, has not indicated to the defendant any necessity forshowing she had no other lands and that her alienation was truly infraud of 'his claim. Had he preserved his own independence by notundertaking her position as a judgment-debtor, defendant mighthave by necessary averments and proof in his answer have hadthe deed of gift set aside when relied on against him.
MARIKAR v. MARIKAR