126-NLR-NLR-V-15-APPUHAMY-v.-APPUHAMY-et-al.pdf
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1912.
Present: Lascelles C.J. and Wood Benton J.
APPUHAMY v. APPUHAMY et al.
138—D. 0. Colombo, 32,008.
Money paid under mistake of law—Action to recover-—Married woman—■
Equity—Condictio indebiti.
Where money ispaidby amarriedwoman indischargeofan
obligation concludedbyherwithouther husband’s consentthe
husband is allowedto recover themoney,unless it was paid byhis
wife with full knowledge of her rights and that she was not obligedto make it.
“ Under the Roman-Dutch law there is a conflict of opinionwhether money paidunder a mistake oflawis recoverable, butthe
tendency in SouthAfrica appearsto betohold that moneypaid
under a mistake of law is not recoverable unless there are specialcircumstances; that,inotherwords,there mustbe anatural
equity on the sideof him whoclaimsthecondictio indebiti.But
the case of a marriedwomanpayingmoney indischargeofan
obligation concluded by her without her husband’s consent appearsto stand on a different footing.”
rjlHE facts appear bom the judgment of Lascelles C.J.
W. Jayewardene, for the plaintiff, appellant.—The gift to thirddefendant is void as against the plaintiff’s mortgage bond, and so the .possession of the third and fourth defendants would in law be anadiation of the inheritance. The third and fourth defendants areliable as heirs in possession. (3 N. L. R. 79; 1 Browne 117.)
The second defendant did not file answer, and judment shouldhave been entered against him.
The order to refund Bs. 580 to third defendant on the groundthat she had paid under a mistake is wrong. Money paid under amistake is irrecoverable. Bogaars v. Van Buren.*
The defendants must show that it is inequitable that plaintiffshould retain this money. The equities are on the side of theplaintiff. Moses v. Macferlan.2
In Boman-Dutch law natural equity must be on the side of himwho claims the condictio indebiti. (Morice 226.)
The third defendant knew her rights and has deceived the mort-gagee. Payments made with full knowledge as to her rights by amarried woman are not recoverable. (3 Maasdorp 392.)
* (1883) Wendt 809.* 2 Burr. 1009.
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Samarawickreme (with him E. W. Pererd), for the defendants, 1M2.respondents.—As against the deceased mortgagor the third defend- Appuhamyv.ant’s deed of gift was good, and her possession after the mortgagor’s Appuhomydeath was on her own behalf and does not amount to an adiation.
The third defendant was ignorant of her rights, that she was notbound to pay any money; the money paid really belonged to herhusband (Ordinance No. 15 of 1876, section 10). It is equitable thather husband’s money should be refunded to him. She was ignorantof her rights when she paid the money.
Cur, adv. vult.
July 5, 1912. Lasoelles C.J.—
The facts which gave rise to the present appeal are the following.By deed dated June 26, 1887, one Lorensu transferred the land inquestion to the third and fourth defendants. This deed was notregistered.
By the mortgage bond dated March 11, 1904, and duly registered,Lorensu mortgaged the land to Don Vansel Appu, the second and, third defendants joining in the personal obligation created by thebond. Both Lorensu and Don Vansel are now dead, and the plain-tiff, as the executor of the will of Don Vansel Appu, now seeks toenforce the mortgage against Lorensu’s widow and children and thefourth defendant, who is the husband of the third defendant.
The plaintiff has not taken steps under section 642 of. the CivilProcedure Code to have an administrator appointed of Lorensu’sestate, but sues the defendants to realize the mortgage, on thefooting that they have adiated Lorensu’s inheritance. He givesthem credit for Bs. 390 paid on account, and seeks to recover thebalance with interest. The plaintiff subsequently admitted thatBs. 580 had been paid by the third defendant on account of principaland interest due on the bond.
The learned District Judge found as facts—and I accept hisfindings—that the third defendant entered into possession of the landin 1887 on the execution of the deed in her favour; that the bondsued on was executed by the third defendant when she was amarried woman without her husband’s consent; that Lorensu, at thedate of his death, had no property, and that his heirs did not adiatehis inheritance or take possession of any of his property.
It is clear—and it is not seriously disputed—that the thirddefendant is not bound by the mortgage bond, and is not liable to besued on the footing that she was a signatory of that instrument.
The appellant’s contention with regard to the third and fourthdefendants is that the transfer of 1887 is void as against the.subsequent registered mortgage bond; that the- former deed musttherefore be regarded as non-existent, with the result that the landcomprised in that deed must be considered as part of the inheritanceof Lorensu, and the third defendant, who is in possession of this
1912.
LascellesC. J.
Appuhamy v.
Appuhamy
property, must be taken to have entered upon the inheritance. Thisargument, in my opinion, is clearly fallacious. Under section 17 of" The Land Registration Ordinance, 1891,” the unregistered deedof 1887 is void as against the parties claiming an adverse interestthereto under the subsequent mortgage bond. But it is only voidto this extent. It is of no avail when brought into competition withthe rights of the mortgagees under the registered instrument, butin other respects its effects as a transfer of the dominium of theproperty are unimpaired. For the purpose of determining whetherthe property comprised in this deed formed part of Lorensu’sinheritance at his death, the deed of 18S7 must be considered as avalid transfer of the property to the third and fourth defendants.The result is that the third defendant cannot be sued on the footingthat she entered Lorensu’s inheritance.
The dismissal of the plaintiff’s action so far as relates to the claimto enforce the mortgage on the third defendant's personal liabilityis clearly right, and the appeal in that respect fails. There remainsto be considered the plaintiff’s appeal against the judgment inreconvention ordering the plaintiff to refund the sum of Rs. 58Q, onthe ground that it -was paid by the third defendant on the mistakenground that she hal contracted an obligation.
It is clear that according to the principles of the English law thethird defendant would have no claim to the refund of this money.There is no pretence that the third defendant paid this sum undera mistake of fact, and the third defendant has in equity no rightwhatever to the refund of the money. ‘‘This kind of action, " saidLord Mansfield in Moses v. Macferlan,’ ‘‘ lies only for money whichex eequo et bovo the defendant ought to refund. It does not lie formoney paid bv the plaintiff, which is claimed by him as payablein point of honour and honesty, although it could not have beenrecovered from him by any courts of law, as in payment of a debtbarred by the Statute of Limitations or contracted during infancy
because in all these cases the defendant may retain it with
a safe conscience, though by positive law he was barred fromrecovering.”
Under the Roman-Dutch law there is a conflict of opinion whethermoney paid under a mistake of law is recoverable, but the tendencyin South Africa appears to be to hold that money paid under a mistakeof law is not recoverable unless there are special circumstances;that, in other words, there must be a natural equity on the sideof him who claims the condictio indebiti. (Morice’s English andRoman-Dutch Law 226.) But the case of a married woman payingmoney in discharge of an obligation concluded by her without herhusband’s consent appears to stand on a different footing. In thiscase, although the money is paid in settlement of a natural obliga-tion, the husband is allowed to recover the money, unless it was paid
> t Burr. 1/009.
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by his wife with full knowledge of her rights and that she was not 1912.obliged to make it. The liability •>{ the plaintiff to retain this EM,,CSmoney thus seems to turn on (he question whether the third defend- <''1-ant was in fact- ignorant that she was not obliged to pay these Appuhnm.i ■■amounts. I am unable to agree with the inference which the learned Appuh-im,District Judge draws from the evidence of the third defendant andher husband.
The facts that the third defendant never mentioned that she had ■signed the bond to her husband until the institution of this case,and that she concealed from him the considerable sums which shehad paid over a period of several years, go to prove that the thirddefendant was aware of her legal position, and that she purposelyconcealed the transaction from her husband with the object ofdiminishing the encumbrance on the property. Every consider-ation of natural equity is against the third and fourth defendants,and I do not think that the former has sufficiently proved that she .made the payments in question in ignorance of her rights so as toentitle her to the benefit of the condictio indebiti.
In the petition of appeal the point is taken that the plaintiff isentitled to judgment against the second defendant, who did not fileanswer. The learned District Judge appears to have overlookedthe case of the second defendant.
For the above reasons, I would vary the decree (1) by ordering thesecond defendant personally to pay the sum claimed; (2) by deletingso much of the decree as gives judgment to the third defendant forRs. 580.
In the circumstances I would award no costs of the appeal.
This judgment is without prejudice to the right of the plaintiffto bring a duly constituted hypothecary action against the legalrepresentative of the mortgagor.
Wood Renton J.— •
For the purposes of this judgment I adopt the facts as stated bythe" learned District Judge, and will deal only with the pointsargued before us on the appeal. The plaintiff-appellant was clearlyentitled to judgment against the second defendant-respondent forthe repayment of the money due under the mortgage' bond, withinterest as prayed for in the plaint. The second defendant-respondent signed the bond as a principal debtor, and did not fileanswer or contest the appellant’s claim. I have no doubt butthat the learned District Judge would have given to the appellantthe relief which he now claims as against the second defendant-respondent if his attention had been called to the point whenjudgment was. delivered. The decree must be modified accordingly.
As regards the appellant’s claim against the third and fourthdefendants-respondents, the District Judge has, in my opinion,come to a right conclusion. I do not think that any of the cases
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1912.cited to us in the argument, of which De Saram v. Perera1 may be
WOODtaken as an example, are applicable to the circumstances with which
Renton j. we have here to deal. The prior registration of Lorensu’s bond inAppuhamy v. favour of Don Vansel Appuhamy, the appellant’s testator, no doubtAppuhamy set aside as against that bond Lorensu’s deed of 1887, under whichthe third defendant-respondent entered upon the possession of theland. But it had no more extensive operation. It did not convertthe continued possession of the land by the third defendant-respondent under the deed of 1887 into a possession of that propertyby her as one of Lorensu’s heirs. There was no adiation by her ofLorensu’s property as heir, and she was not therefore liable to besued under the mortgage bond to which she became a party .withoutthe concurrence of her husband, the fourth defendant-respondent.The appellant’s action on the mortgage fails, therefore, as againstthe third defendant-respondent, and fails equally, of course,. againstthe fourth. The learned District Judge has, in my opinion, rightlydismissed that action as against them both.
I am unable, however, to agree with the District Judge in holdingthat the third defendant-respondent is entitled to a refund of thepayments made by her under the mortgage bon’d on the ground thatthey were payments made under a mistake of law, and can, there-fore, be recovered by the action of oondictio indebiti. See Bogaars v.Van Buren.* It is clear that under Roman-Dutch law the rule statedand acted upon in that case does not apply where such paymentsare made by a married woman with full knowledge as to her rightsand without compulsion. (Maasdorp, III., 392.) The present case,in my opinion, falls within that exception. The third defendantrespondent gave evidence at the trial which shows that sheknew that she had no right to deal with the property without herhusband’s consent, and that she voluntarily made the payments inquestion. I concur in the order proposed by my Lord.
Varied.
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1 (i89S) 1 Browne W.
1 (1882) Wendt 209.