062-NLR-NLR-V-07-FONSEKA-v.-PEIRIS-et-al.pdf
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FONSEKA v. PEIRIS et al.
D. G., Kalutara, 2,350.
Hypothecary action—Action by mortgagee against mortgagor of land and parliesin possession.
The plaintiff, as mortgagee, sued the mortgagor on his bond, andjoined in the same plaint the second, t third and fourth defendants asparties in possession. The second defendant claimed under, and third ;and fourth defendants adversely to, the mortgagor.
field, that such an action was maintainable, and that a mortgagee whoseeks a decree rendering the mortgaged property specially bound andexecutable, fijr the debf is entitled to ^ue a party in possession of the,land and claiming to'be the owner of it, even though he denies the right,of the mortgagor to hypothecate it.
T
HE plaintiff on a mortgagefbond dated 12th January, 1896,sued the first defendant as mortgagor, and the secontT
third and fourth defendants were joined as parties to the
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action for the reasons stated in paragraph 4 – of the plaint,viz.:—
“ The second defendant subsequent to the aforesaid mortgage isnow in possession of the said portion of land, excluding a smallportion on the north, to wit, the portions A and B, and the thirdand fourth defendants are now in the possession of the said smallportion on the north marked A and B, claiming the same adverselyto the first and second defendants, and they have thus renderedthemselves liable to be sued in this action in order that the plain-tiff may obtain a valid and effectual decree declaring the lands andpremises mortgaged as aforesaid *>5ound and executable for theplaintiffs debt.”'■
The plaint prayed that the first defendant be ordered to payplaintiff the debt with interest, and that the mortgaged land bedeclared especially bound and executable for the said debt.
The first defendant, the mortgagor, filed no answer.
The second defendant in his answer claimed title to the land bypurchase at a Fiscal’s sale on 28th June, 1900, but pleaded that hehad no objection to the land being sold for realizing the moneydue on the bond, and. that the sum realized in excess of plaintiff’sclaim should be paid to him.
The third aud fourth defendants pleaded that the plaint disclosedno cause of action against them, and that they were improperlyjoined. They also specially denied that they were in possession ofland belonging to the first or second defendant. For a furtheranswer they claimed title to portions A and B by deed No. 13,596,dated 21st November, 1900.
At the trial, the issue of law was first discussed, viz., whetherthe action was maintainable against the third and fourth defend-ants.
The learned District Judge decided in the affirmative, andproceeded to try the following issue:—Was plaintiff-mortgagorentitled to the portions marked A, B, C and Z, excluding X andthe portion coloured yellow as shown in plan filed?
The counsel for the third and fourth defendants declined to takepart in .the trial of this isuue, and judgment was entered forplaintiff against all the defendants, and costs of the plaintiff andsecond defendant were ordered to be paid by the third and fourthdefendants. The second defendant was declared entitled tb the*jsum realized in excess of plaintiff’s claim anjl costs. ,
The third and fourth defendants appealed.
De Mel, for appellants.—The plaintiff has misconceived hisaction. Even if the action is maintainable, we have been wronglyjoined. This is a personal actioij against the mortgagor and an
1904.July 20.
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1904.hypothecary action against the land. It is only possible to com-
Jtdy 20. bine the personal and hypothecary actions when the mortgagoris in possession at the date of action. The plaint admits that themortgagor is not in possession, and therefore the action fails.[Middleton, J.—What action should the plaintiff bring?] Hecould bring a personal action against the first defendant, or, whatis more appropriate, proceed by the hypothecary action againstthe first and second defendants, The Civil Procedure Code. requiresthemortgagor orhislegalrepresentative tobe always
joined in the hypothecary action. [Middleton, J.—What is thecause of action against you?] None whatever. Assuming thatthe 'present action is proper, plaintiff has no cause of actionagainst the third and fourth defendants. On the bond we areadmittedly not liable. As regards the land mortgaged, plaintiffwould havehad acauseofactionif we derived title through
the mortgagor, and even then, only if title passed subsequentto themortgage.Butweclaimadversely to themortgagor.
If anyonehas acauseofactionagainst us, it isthe second
defendant. [Wendt, J.—Of what avail will the hypothecary decreebe, if you dispute title and do not yield possession?] Thatquestion does not concern us. It may be that second defendantcan bring an action ret vindicatio or 6ue us in ejectment. Perhapsthe plaintiff can proceed against us, after obtaining an ordinarymortgage decree, to have- the land sold under his writ. In ahypothecary action it is irregular to raise the question of title(7 N. L. R. 10); much less in an action on a bond.
Dornhorsi, K.C. (Schneider and Batuwantudawe with him),for plaintiff, respondent.—The present action is quite proper.Under the old law two actions were competent: personal actionagainst the mortgagor for the debt and .the- actio quasi Serviana,commonly- called the hypothecary action, to have the land sold(Poet, 20, 4, 3). Chapter XLVI. of the Code altered that procedure,and the mortgagee must now join all parties in possession withthe mortgagor (4 N. L. R. 42). If my learned friend’s contentionbe upheld, when a mortgagor is sued he has only to put a strangerin possession, and the mortgagee cannot reach him. Of course themortgagee can sue third parties in possession claiming under, ortadverse to, the mortgagor by a real action like this, as was held in aFull Court case reported in 3 8. C. C. 99. Though Justice Clarence• differs, he is*careful'• lo say that hd agrees that a real action iscompetent to the mortgagee against any party in possession. Thisprinciple was adopted .in a case Reported* in 8 S. G. C. 121. This isan actio quasi Serviana, whereby creditors follow up the pledges ^and hypothecs bound to them, expressly, tacitly, or by law, when
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satisfaction is not made to them by the debtor or by- those who arein possession of the subjects mortgaged (Voet HO, 4, 1). Thisaction may be prosecuted not only against the debtor himself andagainst a person who has mortgaged his own property on behalfof a debtor, but also against any third party in possession, whetherhe be a bond fide or maid fide possessor (Voet, HO, 4, 2). If thethird and fourth defendants were not joined, of what avail wouldour decree be? All necessary parties must be joined (7 N. L. R. 10).These defendants are all joined in order to obtain a valid andeffectual decree declaring the land mortgaged bound and executable.
De Mel, in reply.—The authorities cited are not relevant. /Sheymight have been relevant if, first, the appellants claimed titlethrough the mortgagor; secondly, if plaintiff had already a mort-gage decree; thirdly, if this was only an hypothecary action; andlastly, if mortgagor was in possession. Our claim is not merelybond fide. It is expressly averred in the plaint that we are in actualpossession, and that we claim by a title adverse to the mortgagor. Inan incidental action like this, questions of title cannot be decided.[Wendt, J.—How can the plaintiff reach you?] He must proceedby an hypothecary action against the first and second defendants.Till he obtains such a decree, he has no cause of action against us(8 8. G. C. 1H1). Or, the second defendant can sue us in ejectment asin the ease reported in 3 S. C. C. 99. The passages quoted from Voetfor the respondent refer clearly to the right of a creditor topursue the debtor, or any one to whom he has transferred by anykind of alienation, whether bond or maid fide (Voet, 20, 4, 2).[Wendt, J.—Section 640 of Code altered that procedure.] Yes, tothis extent. Before the Code—when the mortgagor was out ofpossession—two remedies were open to the creditor, the personalremedy against the mortgagor for the debt, or the-hypothecaryaction against the party in possession. Section 640 requires thatin the latter case the mortgagor should be joined. Under the oldlaw the plaintiff could bring an hypothecary action against thesecond defendant. Now he cannot maintain the hypothecaryaction against the second defendant without joining the firstdefendant’ (4 N. L. R. 42). But it is only when the mortgagor isin possession that both the personal and hypothecary actions canbe brought simultaneously and joined in one libel (Voet, 20, 4, 3).Here the mortgagor is admittedly not in possession. Therefore,granting that we are a necessary party, the action fails/ So that thesecond defendant can also take objection to tbp form of action.But it is to his interest ijot to do so, for it will" save him thenecessity of bringing a fresh action‘to vindicate title between him“or lihe appellants.
1904.July 20.
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1004.July 20.
20th July, 1904. Wendt, J.—
We think this appeal should be dismissed. The only, questionargued is, as to whether the plaintiff had a right to join theappellants as parties to the action, they being alleged in theplaint to be in possession of a portion of the mortgaged landadversely to the mortgagor.
The authorities to which we have been referred by the respond-ent’s counsel have satisfied us that a mortgagee, who seeks a decreerendering the mortgaged property especially bound and executablefor the debt, is entitled to sjie a party in possession of the landand claiming to be the owner of it, even although he denies therigl^t of the mortgagor to hypothecate it. That of course is a rightwhich the plaintiff must establish in order to secure his decree.
It struck us that perhaps the appellants might be in a positionto ask, on terms, for the indulgence of a new trial, but it wouldseem that they are not in that position. They filed no list ofwitnesses against the trial, and apparently they have no evidenceto support their claim to the land.
Middleton, J.-—I agree.
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