119-NLR-NLR-V-18-FERNANDO-v.-KURERA-et-al.pdf
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Present: Ennis J. and De Sampayo J.
FERNANDO v. KXJBEBA et al.
887—D.C. Negombo, 10,848.
Estoppel—Lessee present at FiscaVs sate—Not disclosing his lease tobidders—Is he estopped from asserting his lease as againstpurchaser t
Defendant, a lessee, was present at a Fiscal's sale held under awrit issued against his lessor, and did not announce the fact of hishaving a lease. The lease was duly registered. Hie purchaser atthe Fiscal's sale was aware of the possession of the defendant underthe lease.
Held, that the defendant was not estopped from asserting his lease asagainst the purchaser at the Fiscal's sale.
fJlHE facts are stated in the judgment of De Sampayo J.
A. St. V. Jayewardene, for the plaintiff, appellant.—The defendantsare estopped from claiming any benefit under the lease, as they werepresent at the Fiscal's sale and failed to notify then and .there to theintending purchaser the existence of the lease. (See Kartikesar v.Kandiya * mid Caruppen Chetty v, Wijesinghe.*) [De Sampayo J.—There was no obligation on the part of the defendants to state theirAlarm t became the Fiscal sold onfy the right, title, and interest of thejudgmefit-debtor.] That was exactly what the Fiscal sold in the
* No. S of im.3 5 BcL m.
3 (2910) 24 N. L. R. 1®.
1015.
( 402 )
, oases Sited,’ but stall it was Bold that tip mortgagees were estopped.|"^r „ [De Sampayo J.—Apparently the point has not been raisfd in thoseZvnm gases. If the Fiscal had Bold the property free from any incumbranceos lease, then it may have been the duty of the defendants to comeforward and disclose their lease.] No aueh distinction has beendrawna either in Kartikeear v. Kandtya1 or Cartippen Ohetty «. Wtje-mtghe.9 Under any oiroumstanoea a mortgagee who fails to disclosehis mortgage is estopped from setting it up as against a purchaserat the sale. [Ennis J.—According to your contention a person whois entitled to a right of way would be bound to notify his tight.]Tes. How else can a purchaser know of the exiateqpe of such a'tight ? [Ennis J.—That is not the test. According to that argumentit is immaterial whether the person having the right is present or not.]No. When the person is present and he does not set up his rightthe purchaser is entitled to presume that he has no suoh right.[He Sampayo J.—Your client cannot say that he was misled, becausethe Judge has found that he was well aware of the defendants*possession under the lease.] The learned Judge was not justifiedin holding that the plaintiff was well aware of the lease. No issue.,was framed on the point at the trial.
E. O. P. JayetMeke, tat the defendants, respondents, was sotcalled upon.
Our. adv. «ult.
October 28. 1915. Enins J—
The appellant sued the respondents for a declaration of title to,and for possession of, a land called Kahatagahawatta.
It appears that the land had been awarded by a partitiondecree to one Sons. After the decree Boris leased-the land for 25yefars to the first respondent. The second respondent is the wife ofthe first. After the execution of the lease half of Saris’s interestin the land was sold in execution against him, and later the otherhalf of Boris’s interest was also sold in execution. The appellantis the purchaser at these two teles, at both of whioh it is admittedthe first respondent was present.
• The' appellantthat the respondents ate estopped from
setting up the lease, as they did not disclose it at .the Fiscal’ssales.*
The learned District Judge has, in my opinion, correctly statedthe law: “ to create an estoppel by acquiescence it is essential toshow that the party against whom it is pleaded, knowing that aviolation of his rights was in progress, stood by and so misled theother party." On the facts he hag found that the sale of Sam’sright, title, and interest in the land was not a violation of the
a (10X0) M N. L. B. 168.
» 6 Bat 108.
( 468 )
respondents’ rights. Sons dearly b§d a sdable iqjteresV quite
apart from .the lease, and*the conditions of sale did not purport 'eksss J.
to deal with more than Saris’s interest. The learned Judge has *<,*
further found, for good reupns, “that the appellant was aware thtftv’
the respondents were in possession under their fease. He has qfso _found that the appellant never entered into' possession. I see no areason to differ with this finding of foot, or with'the conclusion thatthere was no estoppel. Whether or not there has beenean estoppelis a question of fact, and depends on the circumstances of each ease.
In the ease cited die circumstances are not the same astound in thepresent ease.
I would dismiss the appeal, with costs.
Db Sampayo J.—
One Sebastian Soria was die owner of a certain allotment of land,and in execution against him there were two sales of the land, thatis to say, an undivided half share at each sale, on December 19,'1912, and April 20, 1914, respectively. The plaintiff became thepurchaser at the sales, and he obtained Fiscal’s conveyances datedDecember 14, 1918, and October 21, 1914. But prior to thesesales Sebastian Sons by deed of lease dated February 15, 1912, andregistered on March 5, 1912, had leased the land for 25 years tothe defendants, who entered into and have been in possessionthereof as lessees. The plaintiff brought this action to eject thedefendants, and his case is that the defendants were present at theFiscal’s sales and did not announce the fact of there being a lease,and that, the plaintiff having in these circumstances been led intothe belief that there was no such lease, the defendants are now-estopped from claiming any right to possession as against him.The District Judge has decided the issue .thus arising against theplaintiff, and dismissed the action.
Counsel for the plaintiff relies on the decisions in Kartikesar v.Kandiya 1 and Caruppen Chetiy v. Wijesmghe,3 both of which relatedto the case of a sale of land on whieh there had been a subsistingmortgage. The principle enunciated in those decisions is wellknown and' universally accepted, though I think, with deference,that some of the expressions therein are apt to be misunderstood.There is no doubt that where a person stands by and allows a land,which belongs to him or over which he has a mortgage or lea£se, tobe sold under such- circumstances that his conduct leads would-bepurchasers to believe that it belongs to some other person or thatit is free from any incumbrance or lease, he is estopped from settingup his title as owner, mortgagee, or lessee, as the case may be,against the actual purchaser. Indeed, this principle is embodied
A 6 Bol. 203.
* (2920) U N, L. R. 153.
1915.
Ob Samt/vo
" J.
Fernando v.Kurera
( 484 )
in definite terms in section 415 of the JSvidenoe Ordinance, No. 14of 1895, which enacts:—
“ When one person has by his declaration, act, or emissionintentiorfelly caused or permitted another person tobelieve# a thing to be true and to act upon such belief,neither he nor his representative shall be allowed in anysuit or proceeding between himself and such personand his representative to deny the truth of that thing.”
There is up difficulty in eases of ” declaration ” or positive “ act, ”but where it is a case of “ omission ” it is necessary to consider howfor mere silence operates as an estoppel. In my opinidh .the silencemust be under such circumstances that the law implies a duty tospeak. As was pointed out by Parke B. in Freeman v. Cooke,1a duty to speak, which is the ground of liability, arises only wheresilence can be considered as having an active quality, that is to say,where the. party at least means his representation by conduct to beacted upon. Referring to Pickard v. Bean,* which is the principalauthority on the doctrine of estoppel, the learned Baron added:
“ In truth, in most cases to which the doctrine in Pickard v. Bears *'is to be applied, the representation is such as to amount to thecontract or license of the party making it.” The question is one of'fact in each case. Here the defendants were in actual possessionof the land, where presumably the sales themselves took place,so that they would not help being present at the sales. Theyhad registered their deed of lease, and did nothing to misleadthe plaintiff or any other persons present at the sales. No one isbound to open the eyes of purchasers to what they with ordinaryprudence ought to discover for themselves. An owner, whose landis being sold as the property of some one else, may under certaincircumstances find it his duty to come forward and disillusionthose who are invited to bid, for his interests are directly opposedto those of the supposed owner. But in the case of a mortgageeor lessee, the duty to notify his right is less apparent, Bering thatnotwithstanding the mortgage or lease the owner has still an interestwhich may be sold.. As a matter of fact, what was sold by theFiscal m this case, as the Fiscal’s conveyances themselves disclose,was ” the right, title, and interest ” of the execution debtor. Whyshould a mortgagee or lessee, except under special circumstances,suppose^that the bidders will not inform' themselves of the state ofthe title which they are going to purchase ? If they blindly make apurchase at a public sale, I do not see that a mortgagee or lessee,simply because he is such, is bound to protect them by making apublic announcement of his right. If the argument on behalf ofthe plaintiff is sound, it does not matter whether the person pavinga right to the land is present at the sale or not; in every case he will
* 6 4. d B. 469.
( 465 )
fee bound, if he hears ot the prop&ed sale, to disclose Ibis right.01 do not know how and when he may do this, but I think the argu-ment goes further than is justified by any authority. In this ease,however, it is unnecessary to decide how far* the law goes in* thisrespect, because the District Judge has # found on the evidence thatthe plaintiff, who lives only a mile from the land, was welUaware itthe defendants’ possession under the lease. This being so, hecannot be said in any event to have been misled by the defendants*failure to notify the existence of the lease. For these reasons,.( think the plaintiff has foiled to establish the issue -of estoppel.
I am of copinion that the appeal should be dismissed, with costs.
Appeal dismissed. •
> 1915.
Db 8/«2payoJ.
Fernando c.Kurera