( 15 )
SILVA v. FERNANDO et al.
R., Kurunegala, 4,17J.
Action on mortgage bond—Liability of heirs in possession—Civil Pro-cedure Code, s. 642—Capacity of minors to adiate an inheritance—Guardian ad litem*
Where a deceased mortgagor has left an estate under Rs. 1,000 invalue, the mortgagee may sue the mortgagor’s heirs who haveadiated the inheritance or are in possession of the estate in anaction not merely hypothecary but, if necessary, to obtain paymentout of the rest of the intestate’s assets, or he may under section 642of the Civil Proocedure Code bring a hypothecary action againstthe mortgaged property only.
Minors cannot be regarded as adiating heirs or parties inpossession. The retention of an intestate’s property by a guardianad litem is not adiation or possession of such property of the. minorsrepresented by him, but such adiation or possession on the partof the minors may take place through a guardian appointed forall purposes over theiT persons and property before institution ofan action. *
facts cf the case appear sufficiently in the judgment.
Van Langenberg, for appellant.
Sampayo and Trasers-Drapes, for respondent.
24th August, 1897. Bbowite, A.J.—
Plaintiff sues upon a mortgage bond dated 15th July, 1889.The mortgagor died about May, 1895, leaving an estate of tinderRs. 1,000 in value, and three children surviving him. On the5th August, 1896, the Court appointed as guardian ad litem overall the children, as minors, the husband of the eldest child, whoby marriage was no longer a minor, for the purpose of
( 16 )
1807. representing them in an action .to be instituted on the mortgage, andAugust 24. plaintiff on 3rd September, 1896, instituted this action againstBrowne, them by their guardian, praying for a decree against them for theA.J. amount of the debt, with execution against the mortgaged pro-perty and, if insufficient, the other property of the intestate.
The guardian for the minors pleaded payment, but at the trialhe was allowed to contend that the action was not maintainablebecause it was not in conformity with chapter 46 of the Civil Pro-cedure Code. The Commissioner upheld the objection, for thatthe action should have been brought in the manner prescribedby section 642. Now, on the one hand, this Court has (1,124 D. C.,Kalutara, 1 N. L. R. 346 ; 9,510, D. C., Kandy, S. C. M., 15th July,1897) treated an action under section 642 as limited to the purposesof an hypothecary action against the mortgaged property only, andon the other hand, Mr. Van Laungenberg has pointed out that theproviso of section 642 is permissive only, and does not abolish theold form of action against adiating heirs of an intestate who hasdied leaving property altogether less than Rs. 1,000 in value,against whom plaintiff, a mortgagee, should be allowed action tothe extent of the assets they received and still hold, should themortgage when realized not satisfy the claim.
This case is distinguishable from 472, D. C., Chilaw, 2 S. C. R.110. There plaintiff sought only a money decree and did notaver the inheritance was under Rs. 1,000. Here plaintiff seeks amortgage decree, and has so averred as to the value. But theobjection remains that minors cannot be regarded to be adiatingheirs or parties in possession. If it were shown that withoutplaintiff’s intervention a guardian for all purposes over theirpersons and property had been appointed ere institution of theaction, and that he had entered into office and taken charge oftheir estate, the action might have been maintainable against themnot merely as only hypothecary against the mortgage, but toobtain payment out of the rest of the intestate’s assets, if needthere were. But the guardian ad litem is concerned only withthe procedure of the action and not with the holding of propertyfor the children, and any retention of the intestate’s property—byhim or other adult—is by them simply as parties in possession,intromitters upon their own liability, and not affecting or repre-senting minors.
The mortgagee therefore must sue those actual adult parties inpossession as indicated in 6 S. C. R. 13 and 2 S. C. R. 110 if hedesires to get such a full decree; if he will be content with adecree against the mortgage only, he may proceed as section 642.proviso, indicates.
( 17 )
I find, however, that in proceedings preliminary to the institutionof this action and taken expressly for such purpose, all the respond-ents were present and consented thereto. The Court should,on the application being made, have recognized the rulingthat minors cannot adiate, and should have appointed the husbandof the eldest girl to represent that estate under section 642 if hewere willing thereto.
In view of this and of the only plea taken, I set aside the dis-missal, and remit the action with liberty to the plaintiff to applyto have this person so appointed, the plaint amended, and sum-mons issued unless the person shall enter appearance in his newcapacity and abide by the plea already taken by him. If theplaintiff shall so apply, there will be no costs of the hearing inthe lower court of this appeal. If he shall not so apply, his actionmust stand dismissed with costs. I do this to avoid, so far asis possible, unnecessary cost to the creditor and minor heirs ofthe intestate mortgagor.
SILVA v. FERNANDO et al