112-NLR-NLR-V-02-FERNANDO-v.-MARSHALL.pdf
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FERNANDO v. MARSHALL.D. C., Kandy, 9,077.
18904
December'St
Title to land—Prescription—Absence in plaint of averment of pre-scriptive possession—Issues as to possession—Judgment on proof ofpossession by plaintiff.
In an action to be declared entitled to a parcel of land and toreocover possession of the same, plaintiff did not expressly claim thebenefit of Ordinance No. 22 of 1871. He, however, averred in hisplaint possession for upwards of ten years of the parcel on the partof himself and his predecessors in title, and some of the issuesstated, and agreed to at the trial, were as to such possession.
Held, that defendant was not prejudiced by plaintiff’s omissionto pray for a decree under the Prescription Ordinance, and as itappeared that plaintiff had discharged the burden on him on theissues as to possession, judgment was entered in his favour for theparcel of land claimed.
'JpHE facts of the case appear in the judgment of Bonseb, C.J.
Wendt, for appellant.
Domhorst, for respondent.
3rd December, 1896. Bonseb, C.J.—
In this case the plaintiff sues to recover an undivided one-thirdshare of a piece of land in the M&tale District, which appears tohave been originally a coffee estate. In 1879 this estate was ownedas to two-thirds by one Mr. Brown, and the remaining one-thirdbelonged to Mr. G. R. Bray. Mr. Bray mortgaged his one-thirdshare to his Ceylon agents, Skrine & Co., to secure advances for thepurpose of working the estate. The mortgagees put their mortgagein suit and recovered judgment thereon on the 27th May, 1881. Thisjudgment they assigned to the present plaintiff in September,1881. In 1883 the plaintiff procured himself to be substituted inthe record (of Skrine & Co.’s hypothecary action) in the place ofthe plaintiff’s mortgagees, and on the 15th June of that year causedthe property to be put up for sale in execution of that judgment!At that sale he became the purchaser, and it is proved that he enteredinto possession of this one-third share which he had purchased. Hedid not however get a Fiscal’s conveyance till nearly ten years after,namely, on the 5th June, 1893. The conveyance was registered onthe 8th of the same month. In the meantime much had happened ;for on the 30th of June, 1884, he was adjudioted insolvent. Hisassignee put up for sale this one-third share, and it -was purchasedby a man called Salgado, who‘obtained a conveyance fromthe assignee. In the interval also Mr. George Bray, whohad* left the Island, and was then resident in the Colony of
Vol. n.
12(55)29
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1896. New South.Wales sent a power of attorney to this Island, and hisD*«tmber3. attorney sold his one-third share to a gentleman then residing inBoksbb.O.J, Mitale, the Rev. Henry Bray. The conveyance was dated 30thAugust, 1892. The defendants claim under that conveyance, havingin the following year purchased this one-third share from the Rev.Henry Bray. The defendants had also, in some way not explained,become the owners of the other two-third shares, so that they thusclaim to be the owners of the entirety. On the 20th August, 1894,Salgado conveyed the one-third share which he had purchased fromthe assignee to the plaintiff. The plaintiff alleges that in February,1895, he being in possession by his agent of his one-third share, wasforcibly turned out of possession by the defendant’s agent, and thereis no dispute as to this. The plaintiff claims that he is entitled to thisland, and asks for a declaration to that effect, and also to be restoredto possession. At the trial a number of issues were framed—seventeen in all. Of these, the seventh issue was whether theplaintiff possessed the land, that is, after the Fiscal’s sale. Thetwelfth issue was whether Salgado possessed the land, that is, afterthe purchase from the assignee. The thirteenth issue was whetherSalgado put the plaintiff into possession of this land, that is, afterhe sold it to the plaintiff.
The plaintiff adduced evidence, which satisfied the DistrictJudge, and which satisfies me, that he did get possession of theland after his purchase from the Fiscal; that Salgado did get posses-sion after he purchased from the assignee; and that the plaintiffwas put into possession by Salgado when he purchased from him ;and it was not disputed that he was turned out of possession inFebruary, 18^5.
Various questions were argued before the District Judge, andhave been discussed before us, which, in my opinion, it is notnecessary in this case to decide. For instance, what was theeffect before the passing of the Civil Procedure Code of a sale bythe Fiscal ? Did the sale divest the property out of the execution-debtor and vest it in the purchaser when confirmed by the Court ?And was the Fiscal’s conveyance merely evidence of the factof the sale, like a charter of feoffment under the old law of England ?On the other band, was a conveyance necessary to divest the titleout of the execution-debtor and vest it in the purchaser ? as isthe law laid down by section 289 of the Civil Procedure Code. Thereis also the further question, whether a power authorizing a personto convey land in this Island, m the name and stead of another,must be conferred by a notarially executed instrument, or whethera verbal authority is sufficient ?
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In the circumstances it is unnecessary to decide these questions. 1806.
The decree is right, and should be affirmed. The plaintiff has Ueoen$e?satisfactorily proved that he and Salgado have since the Fiscal’s Bousro, C.J.sale in 1883 down 'to the time of the ouster in 1885 held uninter*ruptedly his share. I have some doubts as to whether we oughtto do more than give plaintiff a merely possessory decree withoutdealing with the question of title. But my brothers are of opinionthat we ought to put and end to this litigation by making a declara-tory decree now, and I yield to their opinion.
It is true that the plaintiff did not expressly claim the benefitof the Ordinance No. 22 of 1871, but the parties must have had thispresent in their minds at the trial. For these issues, which I havementioned, were stated and agreed to by the parties themselves.
That being so I think that they must have been stated with a viewto the determination of this question. Under these circumstancesthe defendants cannot justly complain that they are taken bysurprise, and that they did not come into Court prepared to discussthe question of possession.
The judgment is affirmed, but the costs will be taxed as of anaction under class V.
La writ:, J.—
I agree to affirm the judgment. There is I think sufficientevidence that the plaintiff and his predecessors in title have beenin possession of one-third of the land ever since the Fiscal’s salein 1883. The evidence of possession is not only uncontradicted,but it is good in-quality and sufficient in quantity.
Withers, J.—
I am also of opinion that the decree in plaintiff’s favour shouldbe affirmed.
It is quite true that this plaint does not contain any prayer ofa decree of title under our Prescription Ordinance, but the 7th,
8th, and 9th paragraphs of the plaint allege the plaintiff’s entryinto possession of the one-third share under his judicial purchase,
Salgado’s entry into possession under his assignment from theplaintiff trustee in bankruptcy, and plaintiff’s re-entry under hisconveyance from Salgado.
Entry into possession imports tenure, and the plaint allegestenure for a long time.
Possession for ten years and upwards by an adverse title toonerthird of the premises was prpved to the satisfaction of theJudge. I think his verdict on that point right. Upon that verdictplaintiff was entitled to judgment.