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Present : Pereira J. and He Sampayo A.J.USUBULEBBE v. GABRIEL et al.
48—D. G. Kurunegala, 4,767.
Conspiracy—Conveyance of land by A in favour of B—Representation toC that A teas owner to raise loan from C on mortgage—Registrationby B of his conveyance before the mortgage bond—Conveyance by Bin favour of A’s children—Action by purchaser under mortgagedecree—Actio doli—Cancellation of conveyance.
In pursuance of a conspiracy between A and B to cheat C, Aexecuted a conveyance of a parcel of land in favour of B, andthereafter both went to C and led him to believe that the land wasnot encumbered, and induced him to lend money to A, taking fromhim a mortgage of the land as security. B thereafter promptlyregistered the conveyance in his favour, that is to say, before- Ccould register this mortgage bond in his favour, and conveyed theland in favour of A’s children.
Held, that it was competent to a purchaser in execution of adecree in an action on the' bond in favour of C to maintain an actionin the nature of an actio doli against A, B, and A’s children toobtain a cancellation of the conveyance in favour of B and A’schildren.
^lHE facts appear from the headnote.
Bawa, K.C., for defendants, appellants.
Q.Koch and F. H. B. Koch, for plaintiff, respondent.
Cur. adv. vult.
March 12, 1914. Pereira J.—
From the facts established by the evidence in . this case I have nodoubt in my mind that the first and second defendants were guiltyof a foul conspiracy to cheat Ibrahim Saibo, and to induce him toaccept a mortgage oijhe share of land ip claim and part with hismoney for the benefit of these two men. It was no doubt a part of
L «* >
Ueubu Lebbev, Gabriel
their fraudulent scheme to register deed No. 23,068 at the earliestopportunity, and thus to render nugatory the mortgage in favour ofIbrahim Saibo. It is the plaintiff who eventually has become thevictim of the fraud and conspiracy of the two defendants. Thedeed by the second defendant in favour of the minor children of thefirst (deed No. 9,490) cannot be said to be in any better positionthan the other deed, because the grantees on that deed cannot besaid to be bona fide> alienees for value, and the two deeds must there-fore stand or fall together. The main question in the case iswhether it is competent to the vplaintiff to maintain this action.The plaintiff is the purchaser in execution of the property mortgagedby means of the bond in favour of Ibrahim Saibo. After thepurchase the plaintiff instituted a suit for the partition of the land,of which he had purchased at the Fiscal's sale a two-thirds share, andthe third defendant asserted title to that share on deed No. 9,490.Hence this action to have both the deeds (23,068 and 9,490) rescinded.The action, can hardly, in my opinion, be regarded as a Paulianaction. Deed No. 23,068 can hardly be said to be a deed intendedsimply to defraud* present or future creditors. It was a deedexecuted in pursuance of a conspiracy to cheat Ibrahim Saibo.This action is more in the nature of an actio doli under the Roman-Dutch law, which is open to any person injured by the fraud ofanother (Voet 4, 3, 7-12). As stated by Nathan in his work on theCommon Law of South Africa (vol. IF., p. 2622), to constitute fraudit is necessary (1) that the person charged should have acted withwrongful and unlawful intent, (2) that he should have made a falserepresentation, and (3) that such false representation should havebeen made in order .to prejudice either the person to whom it wasdirectly made or some other person. According to the evidence ofthe witness, Ibrahim Saibo, at the execution of the bond in hisfavour,, the first defendant .told him that the property to be mort-gaged was not encumbered. The second defendant, who, theevidence shows, was acting in conspiracy with the first, was present,and raised no objection to the execution of the bond. In thesecircumstances he was, equally with the first, responsible for therepresentation made by the latter, and the object of both thedefendants was manifestly to prejudice Ibrahim Saibo or anyperson who might purchase the property when it was exposed forsale in execution of any judgment that might be obtained ,byIbrahim Saibo in an action on the bond. The present plaintiffeventually happened to purchase the property in that way, and Ithink that he .thus became entitled to maintain the present actionfor a cancellation of the deeds. The cancellation will, of course,in each case, refer back to the date of the deed.
I would dismiss the appeal with costs.
De Sampayo J.—I agree.
USUBU LEBBE v. GABRIEL et al