066-NLR-NLR-V-19-APPUHAMY-v.-GUNASEKERA.pdf
( 266 )
1916.
Present : De Sampayo J.
APPUHAMY v. GUNASEKERA.
165—C. R. Negombo, 23,452.
Mortgage—Transferof mortgaged propertytoseveral persons—Division
of mortgaged property by transferees—Salein execution of one
transferee's portion.
A mortgage is indivisible, and a mortgagee has a right to realizethedebt outofthewholeoranypart of thesecurity without
reference to the fact that the property has since been divided andpassed into several hands. The result is the same if several thingsaremortgagedforthesamedebtandthey subsequently come into
thepossessionofseveralpersons,suchas heirs oralienees of the
mortgagor. Inallsuchcasestheperson who paysthe debt when
the creditor has brought the hypothecary action may have recourseagainst theothers for contribution.The mortgage being indi-
visible, all those to whom the mortgaged property come are in theposition of co-obligors.
rp HE facts are set out in the judgment.
Aserappa, for defendant, appellant.
J. S. Jayewardene, for plaintiff, respondent.
Cur. adv. twit.
June, 27, 1916. De Sampayo J.—
This action for contribution has been brought under the followingcircumstances. One Louis Vedarala, being the owner of threelands, namely, (1) Ambalamkumbma, (2) the northern half ofDelgahawatta, and (3) the southern half of Delguhawatta, mortgagedthem to Cadirasen Chetty. He afterwards transferred the lands inequal shares to the plaintiff and the defendant, who are his sons,subject, to the mortgage, and subsequently died. The plaintiffand the defendant then entered into a deed of partition, by which
1»16.
( 267 )
the second land was allotted to the plaintiff and the third land tothe defendant, the first land being left to be possessed in common.The Chetty brought an action against the plaintiff and the defendantto realize the amount due on the mortgage, the defendant, who hadbeen appointed legal representative of the deceased mortgagorunder section 642 of the Civil Procedure Code, being sued in thatcharacter as well as in his personal capacity. Under the decreeobtained in that action the land held in common was first sold inexecution, and there being still a balance due on the decree, theland allotted in severalty to the plaintiff was next seized and sold,and the decree was fully satisfied. The result of this was that asum of Rs. 135.50 was paid by the sale of the plaintiff's part of themortgaged property in excess of his half share of the mortgagedebt, and the plaintiff has sued the defendant to recover this sum.
The principal ground on which the defendant resists the plaintiff’sclaim is that they were not debtors on the bond, but were only suedas persons in possession of the mortgaged property, and that,therefore, the law as to contribution among debtors does not apply.I do not think that this contention is sound. A mortgage isindivisible, and a mortgagee has a right to realize the debt out ofthe whole or any part of the security without reference to the factthat the property has since been divided and passed into severalhands. The result is the same if several things are mortgaged forthe same debt and they subsequently come into the possession ofseveral persons, such as the heirs or alienees of the mortgagor.Grotius 2, 48, 42; Voet 20, 4, 4. In all such cases the person whopays the debt when the creditor has brought the hypothecaryaction may have recourse against the others for contribution.The mortgage being indivisible, all those to whom the mortgagedproperty come are in the position of co-obligors. Maasdorp’sInstitutes, vol. III., p. 87, shows that even a voluntary paymententitled the person who pays to contribution from his co-obligors.His position appears to me all the stronger if the debt is satisfiedby the sale in execution of his part of the mortgaged property -Nor is it necessary that the whole debt should have been paid;even if he has paid a part only of the debt, he will still be entitledto indemnity, provided he has paid more than his rateable share.See Gauder v. Gauder, D. C. Colombo, No. 18,949. ’ These author-ities dispose of the defendant’s contention in this case, for it isabundantly clear that the liability to contribute exists, not onlyamong the original debtors, but also among persons to whom themortgaged property has passed by inheritance or transfer. Theprinciple of this contribution is the same as in the case of sureties.As regards the mode of enforcing the obligation, 'Voet 24, 4, it saysthat the person who pays whether he be an heir or an alienee of themortgagor, ' is entitled to ask the creditor for a cession of action.
De SamfayoJ. •
Appuhamy
v.
Ounasekera
1 S. C. Min., Nov. 30, 1904.
( 268 )
1916.
Db SampayoJ.
Appuhanvy
v.
Ounasehera
which he may, of course, then enforce for his own benefit, but 'Voetadds that even without cession he may claim indemnity by theactio negotiorum geatorum. This action is founded on the impliedobligation of a person to indemnify another who has been obligedto pay what he himself was bound to pay. The Roman-Dutch lawappears to be in harmony with the English law on the subject.'Where a -person is compelled to pay another's debt, the Englishlaw implies a request on the latter's part to make the payment, andgives the former the action for money paid, which is in essence theactio negotiorum geatorum of the Roman and Roman-Dutch law. InEdmunds v. Wallingford 1 the law is thus stated: “ Where a person’sgoods are lawfully seized for another’s debt, the owner of the goodsis entitled to redeem them and to be reimbursed by the debtoragainst the money paid to redeem them, and in the event of thegoods being sold to satisfy the debt, the owner is entitled to recoverthe value of them from the debtor." This is equally applicable. toone of several co-debtors from whom more than his proportionateshare is recovered.
In my opinion the decision of the Commissioner is right, and theappeal is, therefore, dismissed with costs.
Appeal dismissed.