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CAROLIS APPUHAMY u. JAMES APPUHAMY.
G. R., Matara, 4,524.
Husband and wife—Right of surviving spouse to sell property to pay the debtsof the marriage community—Voluntary payment of debt—Absence ofnecessity for sale—Onus of proof.
D A, having married G H in community of property, died in 1882,leaving his mother and two daughters C and A as his heirs, and certaindebts unpaid.
In 1891, the widow G H conjointly with C and one J, who kept Aas his mistress, sold a land belonging to the joint estate to the firstdefendant.
In 1897 J and A (having been duly married in 1895) conveyed one-fourth of this land to the plaintiff.
In an action rei vindicatio brought by the plaintiff against the firstdefendant and A and J (second and third defendants)—
Held, that upon proof of A’s title to the one-fourth of the landthrough her intestate father, the onus shifted to the first defendant toprove that the sale to him by G H (the'widow) was for payment of herdeceased husband’s debts, and that in failure of such proof and of anyevidence of authority from A to J in 1891 to sell the land to the firstdefendant, the plaintiff was entitled to succeed in his action.
Held further, that where a surviving spouse has sold property to paythe debts of the community, and a child claims to have the deed ofsale set aside, it is incumbent on the child to prove that he did not gethis proper share of the inheritance.
HE plaintiff 'in this case prayed for a declaration of title toan undivided one-fourth of a certain land, which ori-
ginally belonged to one Gimara Haminey, who had inherited
November 23and 26.
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November 28and 26.
it from her parents. About 1860 she married one Don Andriswho died in 1882 leaving certain debts unpaid. His heirs werehis mother and two children, Adriana and Ceciliana. The widowundertook to pay the debt and sold the entire land to firstdefendant by deed dated 18th September, 1891, in which thevendors appeared to be the widow, her daughter Ceciliana, andone Don Juanis, who at that time was keeping the other daughterAdriana as his mistress.
In 1895 Juanis married Adriana, and on the 3rd September,1897, he and his wife conveyed one-fourth of this land to theplaintiff.
At the trial Juanis denied that he was party to the deed of13th September, 1891, but the District Judge disbelieved him onthe strength of the evidence of the notary that he did sign thatdeed. The Commissioner was further of opinion that “ the widow“ had constituted herself an administratrix of her husband s“ estate, and the sale by her to pay her husband’s debts was a sale“ out and out, and reserved nothing for the children; and that■“ neither Juanis nor his wife Adriana can go behind that deed;“ and that the sale to the plaintiff by Juanis and Adriana is a“ fraudulent one intended to prejudice the first defendant.”
The Commissioner, therefore, dismissed the plaintiff’s action.
Bawa, for plaintiff, appellant.Cur. adv. vult.
26th November, 1900. Browse, A.J.—
This is a novel would-be application in an extended form ofthe doctrine in Edirmannesingam’s Case (Vand. 264) of the rightof a surviving spouse to sell property to pay the debts of thecommunity. In any such case the procedure is that the child whoclaims to set aside the deed by the surviving parent to the pur-chaser must first prove that he or she has not got the proper share(23,338, D. C., Matara, S. C. M. 3rd November, 1S71; 31,076, D. C-,Matara, 5 S. C. C. 70; 250, C. K., Colombo, Wendt, 343, overrulingthe doctrine in Vand. 266, that the primary onus lay on thepurchaser), which onus the child will sufficiently discharge byshowing that the sale deprives him or her of some part whichwould have descended (5 S. C. C. 163).
Here the property came by inheritance to the mother. Herhusband died. She and one daughter and third defendant, whothen was keeping the other daughter, second defendant, but notmarried to her, conveyed the land in claim to first defendant in1891; and their case is, that they did so to pay the debts of themother’s father, who had died about 1879. They sav it was a
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debt of the community which the spouses who inherited theassets of the original debtor were liable to pay.
Assuming there was full proof of this, I would hesitate so toexpand the doctrine in question, and that of an heir being liablefor the debts of his ancestor to the extent of the assets which hehas received, into the voluntary payment by a surviving spouseof the debts twelve years after the ancestor’s death. I wouldconsider that at the very least there should be strict proofas to the ancestor’s liabilities and assets showing fhat there wasfinancial necessity for or justification of the voluntary act.
Here any such alienation by the mother with her daughterand third defendant in 1891 would operate to the prejudice ofsecond defendant, and so the onus of proof by plaintiff of hisvendor, second defendant’s right was sufficiently sustained under5 S. C. C. 163.
The onus then shifted to the first defendant to prove that thesale to him was for payment of debts. The conveyance to himhad no such recital of fact, and this mother-vendor and he have notat all proved any such administrative necessity. Third defendanthad no right to sell his mistress’s (as she' then was) share. 1would decline to admit as sufficient evidence that she assented tohis doing so. It should be proved that under some exigency sheauthorized his doing it for her, and, in the absence of notarialauthority, such evidence should be received with extreme caution.I must hold that second defendant still had right to convey toplaintiff, and set aside the dismissal and enter decree for plaintiffas prayed with all costs.
November 23and 26.
CAEOLIS APPUHAMY v. JAMES APPUHAMY