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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice.
DARLEY, BUTLER & CO. v. FERNANDOC. R., Colombo, 5,532.
Sates—Payment . bythird party—Liabilityofownertorepay—Legal
The owner of a house mortgaged it and afterwards sold it to thedefendant subject to the mortgage. The mortgagee sued on themortgage bondandobtained judgment;andunderawrit issued
in execution ofthe judgment, thehousewassold andbought bythe
plaintiffs on February 16,1907,andthesalewasconfirmedon
April 16, 1907.
On May 15, 1907, the Municipal Council gave notice to the -plaintiffs that the house would be sold unless the consolidated ratefor the second quarter of 1906 was paid. The plaintiffs thereuponpaid the ratesnot only for thesecond, butalsoforthe thirdand
fourth quartersof1906, and broughtthisactiontorecover the
amount from the defendant.
Held, that the defendant was liable to pay amount.
PPEAL by the defendant from a judgment of the Commissionerof Requests, Colombo. The facts are fully stated in the
judgment of the Court.
A. St. V. Jayewardene, for the defendant, appellant.
Bawa, for the plaintiffs, respondents.
Cur. adv. vvlt.
June 1, 1908. Hutchinson C.J.—
The plaintiffs brought this action against the appellant claimingRs. 188.65, being the consolidated rate due for a house in Colombofor the second, third, and fourth quarters of 1906, which the plaintiffshad paid.
A former owner of the house had mortgaged it, and then, by deedof November 19, 1904, sold and conveyed it to the defendantsubject to the mortgage. The mortgagees then sued on theirmortgage bond and obtained judgment; and under a writ issued inexecution of the judgment the house was sold and bought by theplaintiffs on February 16, 1907, and the sale was confirmed by orderof the Court on April 15, 1907.
On May 15, 1907, the Municipal Council gave notice to theplaintiffs that the house would be sold unless the rate for the secondquarter of 1906 was paid; and the plaintiffs thereupon paid therates, not only for the second, but also for the third and fourthquarters of 1906. They say that the house was, during the period
when the said rates were incurred, the property oi the defendant, andthat the rateB were legally payable by him. All this was admitted,except that the defendant denied that the rates were legally payableby him. It was also admitted that such rents as were recovered forthe last three quarters of 1906 were taken by the defendant.
The defendant in his answer denied that the rates were legallypayable by him; and the Commissioner records that, whilst theplaintiffs contended that a person holding a property should pay therates on it, the defendant contended that the property itself isliable. The Commissioner decided that the defendant was bound‘‘ in equity ” to repay the plaintiffs. In the petition of appeal .thedefendant takes two points: (1) That the plaintiffs were under nocompulsion to pay the rates for the third and fourth quarters; and
that the rates are a charge on the house, and that the plaintiffsbought it subject to the charge. In the argument on the-appeal thedefendant’s counsel abandoned the contention which he bad put -forward before the Commissioner and in his petition of appeal thatthe house was liable, and contended both that he was not personallyliable to pay the rates, and also that the house was not liable forthem, and that, therefore, the plaintiffs were not compelled to paythem.
The Commissioner says that “ the plaintiffs were under no legalcompulsion to pay the taxes, and did so' to save the property,”meaning, I think, that they were not personally liable, but that theproperty was liable. When he speaks of the " taxes,” he meansthe " rate and, similarly, the plaintiffs in their plaint, thoughthey talk about the “ rate,” “ the tax,” “ the said rates and taxes,”and “ the said taxes,” mean only the rate; for it does not appearthat any “ tax ” was ever demanded from or paid by the plaintiffs.
A “ tax,” of course, stands on a different footing from a “ rate.”
The issues settled were: (1) Does the plaint disclose a cause ofaction against the defendant? (2) Was the rate legally payable bythe defendant to the Municipality? The first must be answeredin the negative, because the plaint does not allege that the plaintiffswere compelled to pay; but that can be remedied by an amendmentof the plaint, and I think that I ought to treat it as if the amendment,which ought to have been made, had been made, so that the realquestion at issue can be determined, which is, whether the plaintiffswere compelled to pay.
The Municipal Councils’ Ordinance gives in. section .127 power toassess a rate on the annual value of houses. By section 138 noticeof the assessment is to be served on the " occupier,” in Form D,with a demand for payment; and Form D is a notice that “ Ybu ” (i.e.,the occupier) are assessed' in respect of the under-mentioned propertyat the sums mentioned, and that “ ybu. are ’required to pay theamount of the above fate; in failure whereof a ’warrant” will be ibsuedfor recovery of the same.” If the rate is not paid,’ a warrant is, by
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1908.section 149, to issue to levy it by seizure and sale of all the movable
Juntand imovable property of “ the proprietor ” of the premises and
Hutchinson of all movable property to whomsoever belonging which is foundc,Jl on the premises. The form of the warrant, Form E, recites thatthe persons named in the schedule to it have been “ rated ’’ at thesums mentioned in it, and directs the officer “ to seize the propertyof the said persons (or the movable property of any person whomso-ever which you may find on the premises),” and, if the rate is notthen paid within eight days, to. sell the property seized.
It seems, then, that the rate is assessed on the annual value of thehouse; notice of the assessment is served on the “ occupier ” that heis assessed and is required to pay; in default of payment all theproperty of “ the proprietor ” and all movables found on the housecan be seized under section 149; and the warrant (E) directs theseizure of the property of “ the said person,” i.e., of the person rated.Who is the “ person rated?” Is it the same as the “ person assessed ” •of Form D? Or is it the “ proprietor ”? I think it must be the” proprietor,” in accordance with section 149, and that it mustmean the person who was the “ owner ” of the house (as defined insection 3) during the period in respect of which the rate was due.For, although it is the occupier who is to be notified of the assessmentand required, to pay, and.'no provision is made for informing theowner, the Legislature can hardly have meant that all the propertyof the occupier should be liable; and the word “ proprietor ” insection 149 cannot mean the occupier. It seems strange that theLegislature, after carefully defining an “ owner,” should speak of aproprietor, unless it meant something different from an owner; butI think it means the same thing.
The plaint alleges, and the defendant admits, that the noticereceived by the plaintiffs was “ to the effect ” that the house wouldbe sold if the rate was not paid. This could not have been a noticein Form D. The original has been produced to me. It is on aprinted form; it is not addressed to any one, and there is no space onit for writing any name, and no statement or place for the statementof the property in respect of which the rate is due. It says “ Noticeis hereby given that the premises No. 3, Polwatte road, seized on' Eebruary 27, 1907, by virtue of a warrant issued by the Chairmanof the Municipal Council of Colombo, in terms of the 149th clauseof the Ordinance No. 7 of 1887, for arrears of consolidated rate due
for second quarter of 1906, will be sold unless in the meantime
the amount of the rate and costs be duly paid.”
It appears, then, that the house had been' seized in February,whilst the defendant was still the owner of it, and that it was liableto be sold for default in payment of the rate for the second quarter;so that the plaintiffs were obliged to pay that rate in. order to savethe house, which since the seizure had become their.property. Andthe defendant was liable to pay that rate, at least to this extent,
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that all his property was liable for it. His counsel contended that, 1998.inasmuch as he was not personally liable, the rule does not apply ^runethat when one man has been compelled to pay a sum which another Hutownsw*is liable to pay, he can recover it from that other. In my opinion,the rule does apply, and I decide that the plaintiffs can recover therate for the second quarter from the defendant.
With regard to the rates for the third and fourth quarters, thedefendant waB the owner of the house during the period for whichthose rates were assessed, and all his property was liable for them.
And although the house itself might not be liable, because thedefendant was not the owner of it at the date when the warrant torecover it would have been issued, all the movable property of theplaintiffs in the house would be liable to be seized and sold if thoserates were not paid. I do not think it necessary to require evidencethat the plaintiffs had any movables in the house; it is enough thatanything which they might have in the house would be liable. Ihold that the plaintiffs were compelled to pay those arrears.
I dismiss the appeal with costs.
DARLEY , BUTLER & CO. v. FERNANDO