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Present; Ennis and Schneider JJ.
ROBERT v. SILVA et al.
75—D. C. Guile, 18,949.
Moriga^e bond—Usufructuary mortgage as to part of the amount lent*—Agreement to pay interest for the balance—No interest paid—Prescription.
.Defendant granted a mortgage bond to the plaintiff for Ba. 400;for the purpose of interest the mortgage was made a usufructuaryone in respect of Bs. 300, and for the remaining Bs. 100 there wasa promise to pay interest at 15 per cent. No interest was paid.
' Held, that as the bond was one and indivisible, prescriptiondid not run as to the Bs. 100 as long as plaintiff had possession.
HE plaintiff-respondent sued the first defendant, appellant,upon a mortgage bond for Bs. 400, by which it was agreed
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that seooad defendant should possess the mortgaged property inlieu of interest on Rs. 300 out of the principal amount, and paythe balance principals of Rs. 100 with interest at 16 per cent, perannum.
The first defendant, appellant, pleaded by hia answer that no demandwas made before action. He paid into Court Rs. 300, and pleadedthat the claim to balance principal of Rs. 100 and interest wasprescribed by lapse of time. The second defendant has filed noanswer. The District Judge (T, B. Russell, Esq.) held that theclaim was not prescribed.
J. 8. Jayawardene, for first defendant, appellant.
Soertsz, for plaintiff, respondent.
September 11, 1922. Ennis J.—
This was an action over the principal and interest on a mortgagebond. The plaintiff claimed a principal sum of Rs. 400 on the hond,and the sum of Rs. 100 as interest. It appears that the bond is tosecure the payment of a sum of Rs. 400, and: a certain, land wasmortgaged as security for this. sum. For the purpose of interest themortgage was nifide a usufructuary one in respect of Rs. 300 out ofthe Rs. 400, and for the remaining Rs. 100 there was a promise topay interest at 15 per cent. The only issue in the ease was whetherthe plaintiff's claim was prescribed as to the interest and the Rs. 100upon which interest had to be paid in cash. The learned Judgeheld that the bond was one and indivisible, and that*therefore, prescription did not run. I am in second .with thatcontention.
On appeal it. was argued that inasmuch as the plaintiff in hisplaint had set out his claim for interest at Rs. 100, the plaintiff hadthereby acknowledged that the Rs. 100 was a separate and dividedmatter from the Rs. 300. I do not think this point, can be urgedagainst the plaintiff, as it was open to him to correct the mistake atany time, and the plaintiff might have claimed interest within thelimits of the bond amount, viz.,.Rs. 400. The possession in lieu ofinterest year by year amounted to a payment of interest on someportion of the Rs. 4d0 every year, and therefore the last payment ofinterest was at the date of action.
1 see no reason to interfere with the finding of. the learned Judge,and . dismiss the appeal, with costs.
Scbnbideb J.—I agree.
ROBERT v. SILVA te al