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Present: Pereira J.
MARIKAR v, MOHAMED et al.
467—C. B. Kalutara, 6,66$.
Landlord and tenant—Invectaet- illata—Sale in execution—Tacit
hypothec over proceeds of sale.
The tacit hypothec that a landlord has over the invecta et illatain the house let out attaches, in the case of movable property, tothe proceeds sale of such property in the hands of a person whoknowingly has had the property sold in execution of a decree inhis favour and drawn the money himself.
facts appear from the judgment.
Aridariandani, for first, second, third, and fourth defendants.—The landlord has no more than a lien over the invecta et illata. Themere existence of this lien does not help the landlord when he comesin competition with other creditors of his tenant. To claim pre-ference the lien ought to be perfected by due attachment (Voet 202, 3; Bam. 1877, 62; also Grenier’s Reports 1874 (D. (7.), 33). InSouth Africa it has been held that a person who effects the removaldestroys the lien even if he had notice of it. Wille’s Landlord andTenant in South Africa, 360 and 361. There is no evidence thatthe defendants had notice of the landlord’s claim.
A. St. V. Jayewardene, for plaintiff, respondent.^The landlord’sclaim is not a mere lien. He has a tacit hypothec over .the goods,and can, therefore, follow the proceeds sale as against a person whohad. knowledge of the landlord’s claim. There are good grounds forsupposing that the defendants knew of the landlord’s claim. Besides,there is the sworn testimony of the plaintiff.
Arulanandam, in reply.—Even if the landlord’s claim is regarded asa tacit hypothec, there is no authority for supposing that the land-lord has priority over a man who has a judgment and has sequesteredthe property. The law favours the man who is diligent in assertinghis rights.
t-wr. adv. vult.
December 29, 1913. Pereira J.—
In this case the plaintiff had rented out a House to the fourthdefendant, and the fourth defendant owed him Rs. 120 as rent.The first, second, and third defendants had the stock in trade ofthe fourth defendant in the boutique let to him by the plaintiff
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seized on a mortgage decree. The plaintiff as landlord claimed atacit hypothec over this property as security for the rent due to him,and this right he undoubtedly had. With full notice of the plaintiff'sclaim, the first, second, and. third defendants had the propertymentioned above sold under the seizure already referred to; andthe question arising on the present appeal is whether by reason ofthis sale the plaintiff lost his right of tacit hypothec, and, even so,whether the first, second, and third defendants were entitled to takefor themselves the proceeds of sale. It must here be rememberedthat the tacit hypothec that a landlord has, under the Roman-Dutchlaw, over the imecta et Mata, in the house given on rent, is somethingmore than a mere lien or jus retentionis, although in some cases oftacit mortgage a jus retentionis attaches to it; and so the meredeprivation of the exercise of the right of retention does not byitself affect the right of tacit hypothec, but in the event of a bonafide sale and removal of movable property which is subject .to a rightof tacit hypothec the principle mobila non hdbent sequelam applies,and the property itself cannot be followed up; but the proceedsstand in the place of the property, and the burden of hypothecattaches to the proceeds in the hands of a person who has receivedthe same with full knowledge of the hypothec and in spite of theclaim of the party entitled to it. In the present case the first', second,and third defendants should have given the plaintiff notice beforedrawing the money received by the Fiscal, because the sale tookplace after even the institution of the present case. I am not surethat a person who innocently and without knowledge of the factsreceives the proceeds of sale of property subject to a tacit hypothecand converts, the same to his own use is similarly liable, it beingthe duty of the landlord to assert his claim openly; but the queetioahere involved need not be gone into in. the present case.
For the reason given above I dismiss the appeal with costs.
MARIKAR v. MOHAMAD et al