GUNATILLEKE v. FERNANDO

119-NLR-NLR-V-22-GUNATILLEKE-v.-FERNANDO.pdf


( 385 )
[Privy Council.]
Present: Viscount Haldane, Lord Atkinson, and Lord Phillimore,GUNATILLEKE v. FERNANDO.
265—D. 0. Colombo, 51,907,
Exceptio rei venditae et traditae—Sale by a person who has no tide—Subsequent acquisition of title—Distinction between the English lawand the Roman-Dutch law—Is delivery necessary for consummationof sale of immovable property f—Sale of a contingent interest—Spes—Res judicata—Land Acquisition Ordinance, No. 44 of1917.
Under the doctrine of the Roman-Dutch law, exceptio rei vendi-tee et traditce, the purchaser who had got possession from a vendor,who at the time had no title, could rely upon a title subsequentlyacquired by the vendor, not only against the vendor, but againstanyone claiming under the vendor ; and though delivery was apartof the defence, if the purchaser had acquired possession withoutforce or fraud, he could use the exception, though he had neverreceived actual delivery from the vendor. If he had once been inpossession without force or fraud, and had since lost possession, hecould recover it by the Publician action, using the exception as areplication to any defence set up by the vendor or those claimingtitle under him.
Under the English doctrine of conveyance by estoppel, theestoppel is derived from the recitals of title contained in the con-veyance, and it is these recitals, and these only, which the grantorhas to make good, so that if he subsequently acquires the owner-ship of the property by some other title, the subsequently acquiredinterest does not feed the estoppel so as to make the originalconveyance effective as against a third party.
Though there-is a considerable analogy between the doctrine ofthe English law and the Roman-Dutch law, the two doctrines arenot identical. The Roman-Dutch principle does not rest uponestoppel by recital, and is broader in its effect than the Englishrule.
Under our law there need not be actual delivery, traditio, in theRoman or Roman-Dutch sense for the consummation of the sale ofimmovable prqperty. If, therefore, the earlier sale is accom-panied, followed, or evidenced by certain acts which may be deemedequivalent to the Roman traditio, that sale will prevail, though thefirst purchaser may never have beeh. in possession.
Section 48 of the Land Acquisition Ordinance, No. 44 of 1917,has no retrospective action.
Under the Roman-Dutch law a vested interest in remainder canbe alienated. Similarly, an alienation of a contingent interestis not prohibited, and an instrument purporting to alienate such aninterest is not null and void.
30
1921*
1021.
( 386 )
Ounatillekev. Fernando
Know oil men by these presents that I, Maria Felsinger of Colpetty inColombo, widow of Swarisge Marsalinoe Swaris, in consideration of thenatural love and affection which I have and bear unto my son, SwarisgePalis Swaris, otherwise called Punehimahatmaya, also residing atColpetty in Colombo, of the same age of 16 years, and for divers othergood, causes and considerations, me hereunto specially moving, do herebygive, grant, and assign, transfer, and set over unto the said SwarisgePalis Swaris, his heirs, executors, administrator, and assigns as a giftabsolute and irrevocable, under and subject to the conditions, aadreservations hereinafter mentioned, all my share, right, title, and interestin and to (than the property is described), together with all deeds midwritings rolat ing thereto, and with all my right, title, and interest thereinand thereto.
To have and to hold the said premises with the easements, right, andappurtenances thereunto belonging, or used or enjoyed therewith^ tUfknown as part and parcel thereof unto him, the said Swarisge PatteSwaris, his heirs, executors, administrators, and assigns forever, subject,however, to the following conditions and reservations that the .saidMaria Felsinger shall have the right of possessing and enjoying the rents,income, produce, and issues of the said lands and premises until thesaid Swarisge Palis Swaris shall have arrived the age of 25 years, andthat after the said Swarisge Palis Swaris shall have arrived the saidage of 25 years, if I, the said Maria Felsinger, shall be then living, thenthe said Swarisge Palis Swaris shall not be at liberty to sell, mortgage,or alienate the said lands and premises during my lifetime, but shall onlypossess and enjoy the rents, income, and produce thereof, but that if ithe said Maria Felsinger, shall die before the said Swarisge Palis Swansshall have arrived at the said age of 25 years, then the said SwarisgePalis Swaris shall only possess and enjoy the rents, produce, andincome of the said land and premises, but shall not be at liberty to sell,mortgage, or alienate the same until he shall have arrived the said age of25 years, and that if the said Swarisge Palis Swaris should die withoutlawful issues, then the said lands and premises shall devolve and go tohis two brothers, Swarisge Stephen Swaris and Swarisge Nicholas'Swaris, or to their lawful issues, provided that I, the said Maria Felsinger,shall have the right to possess and enjoy the rents, produce, arid incomeof the said lands and premises during my lifetime, but if the saidSwarisge Stephen Swaris and Swarisge Nicholas Swaris ….should die without any issues, then the said land and premises shall revertand devolve on me or my lawful heirs, but if one of them shall die withoutissues, then both the said lands and premises shall devolve on thesurviving brother, whether he shall have any issue or not, and if heshall also die without issue, then the said land and premises shalldevolve on me or mv heirs ….
T
HE judgment of the Supreme Court is reported in 21 N. L. S.257.
June* 28, 1921. Delivered by Lord Phillimore
The suit out of which the present appeal arises concerns the, titleto cortain properties in Colombo. It was brought by the presentrespondent seeking to acquire possession as against the appellant.
Ono Maria Felsinger, by a notarial instrument or deed poll, datedSeptember 23, 1882, instituted ajfidet commissum, which so far as, ismaterial is in the following terms :—
( 387 )
And I. Elias Perera Senewiratne, do hereby thankfully accept andreceive the above gift and on behalf of the said Swarisge Palis Swarip.subject to the aforesaid conditions and reservations.
The instrument was duly registered. Its construction and effecthas given rise to much litigation, both parties to- the present suitclaiming titles under it.
The narrative of what has ?>ince happened is as follows : The son,Palis, attained the age of 25 in 1891, but died without issue in 1896.His mother married a second husband, Daniel John Fernando, anddied in 1916. The other sons, Stephen and Nicholas, are assumedto be still living. Palis, on October 23,1893, purported to mortgagethe property to Francis Perera Wanigeratne. The mortgagee put upthe property for sale, and it was bought by Charles Perera, whoobtained a transfer from the Fiscal on July 24, 1903.
On December 5, 1893, Pali3, with the consent of Maria, purportedto sell the property to Daniel John Fez ando. On May 23, 1895,Stephen and Nicholas made r. deed of transfer, either of the wholeproperty or of their interest in it, or of .ome interest in it, to oneDon Comelis Appuhamy, for the sum of Hs. 1,000. The nature ofthe interest transferred will be discussed later. Don Comelis, onFebruary 2,1905, transferred his interest in the property to CharlesPerera. Lastly, on December 17,1913, Stephen and Nicholas, by adeed of gift, transferred the property, subject to a reservation forthe benefit of Maria during her life, to the defendant-appellant,Lionel Oswin Fernando, who is a son of Daniel John Fernando.Under certain dispositions then made, Lionel Oswin’sinterest passedto other members of the family and then came back to him. It isunnecessary to deal with these dispositions. The result is that thedefendant-appellant has two lines of as^ ted title to the property.The plaintiff-respondent has also two linos of asserted title. Sheclaims as executrix of James Perera, wLo was executor of CharlesPerera.
• On August 31, 1909, Daniel John Fernando sued James Pereraas the executor of Charles for the possession of the property. Herelied on the deed of December 5, 1893, by whiqh Palis, with theconsent of Maria, purported to transfer the property to him. Thedefendant traversed the plaintiff’s cla^n, and further relied uponthe mortgage, made two months earlier on October 23, 1893, andthe purchase by his testator diaries Perera at the auction sale andthe transfer from the Fiscal. The case was decided in favour of thedefendant by the District Judge, but Lis decision was reversed bythe Court of Appeal, and this reversal was sustained when the casecame before their Lordships’ Board. The decision ottheir Lordshipsestablished that the mortgage of October 23, 1893, was ineffectual, .because Palis was prohibited from attesting the property, at anyrate during the lifetime of Mar and thereby the first line of titleby which the plaintiff might claim is destroyed. With regard
1921.
Load
Fhilxjmobii
Gunattllekev. Fernando
.1921.
Lord
Philumobb
Qunatillekev. Fernando
( 388 )
to the claim oi Daniel John Fernando, the Supreme Court- of Ceylonand the Privy Council held that the deed of December 5,1893, waseffectual to transfer Maria’s life interest, and that by virtue of thattransferred life interest he could claim possession. As their Lord-ships observed no ulterior rights were brought into the case.
The next thing that happened was that in 1909,t-he Crown acquiredunder a Land Acquisit ion Ordinance a small part of the land inquestion and paid the compensation money for it into Court.Thereupon, both Daniel John Fernando and Janies Perera claimedthe money, and the District Court again decided in favour of JamesPerera. The Supreme Court set aside this judgment, and declared,as in the previous case, that Daniel John Fernando was entitled tothe interest during the lifetime of Maria. But the Court proceededto decree and declare that, on the death of Maria, James Pererawould be entitled to the sum. The learned Judges* decided thequestion left open in the previous case, as to the ulterior rights ofthe parties after the death of Maria. They held that the restrictionof alienation in the original fidei commissum did not operate merelyto protect the life interest of Maria, but also to protect the contingent-gift to Stephen and Nicholas, and that the deed of December 5,1893, was only effectual in so far as it transferred the life interest ofMaria, and that Palis could not, even with the consent of Maria,make an effectual transfer of the property out and out. Thisjudgment was not appealed from, and is relied upon by the plaintiffas constituting a res judicata; and, subject to one observation, itwould so operate and bind Daniel John Fernando and all personsclaiming under him, and thus would destroy the first line of title ofthe defendant-appellant. But it would not bind Stephen andNicholas, who were not parties to the proceedings, and thereforewould not bind the defendant so far, as he claims through his secondline of title.
A contention was, however, raised on behalf of the defendant,which would have the effect of taking this decision out of thecategory of res judicatse. It was said that by an Amending LandAcquisition Ordinance of 1917 decisions as to the title to small sumsof money paid into Court by the Government are not to operate asdecisions effecting the title to the remaining bulk of the property,and that the effect of this Ordinance was retrospective, and that-the sum paid into Court in this particular case being within theprotected limit, this particular decision did not operate as a resjudicata. Their Lordships cannot take this view. The effect ofthe Amending Ordinance was not merely to establish this provision.The provision was part of a scheme under which the decision as totitle to small sums was taken away from the District Courts with anappeal to the Supreme Court and sent to the Court- of Bequests,and it is probably for this reason that these decisions are not to bindthe bulk of the property. The two provisions cannot be separated ;
( 389 )
and even supposing that in other circumstances th$ Ordinance of1917 might have been construed as retrospective, these circum-stances make it clear that it was prospective, and accordingly therule oi res judicata applies.
This leaves the parties eu-ch so far in possession of their secondlines of title. As to the defendant, his title under the transfer ofDecember 17, 1913, ©fleeted by Stephen and Nicholas, is not ques-tioned. If Stephen and Nicholas had any interest left to transfer,they efleotnally transferred it by that deed.
But if the deed of May 23, 1395, executed between Stephen andNicholas as transferors and Don Cornelia as transferee, was effectual,that transfer, being long prior to the transfer to the defendant, mustprevail for the purposes of the present suit; and the main argumentbefore their Lordships’ Board has turned upon the validity and theeffect of the deed of May 23, 1895.
The District Judge decided against it in a very careful judgment.He held that Stephen and Nicholas had at the time no title to convey.He then inquired whether the plaintiff was entitled to rely upon thetitle acquired by Stephen and Nicholas after the death of Palis,although she had not got a conveyance after the title had beenacquired, and although she was out of possession. He held thatshe could not, and dismissed the action.
On appeal equally careful and very learned judgments were givenin the Supreme Court, which came ultimately to the conclusionthat the plaintiff could rely without more upon the two facts thather predecessor in title had had a conveyance froni Stephen andNicholas, and that, though Stephen and Nicholas had nothing whichat the time they could convey, their subsequent acquisition withoutmore enured to the benefit of their transferee and made the originaltransfer operative as from its date, and consequently that the titleof the plaintiff prevailed over that of the defendant. In the argu-ment before their Lordships’ Board these points have been elaboratelydiscussed, and their Lordships have derived great benefit from the *arguments on both sides. The matter has also been presented on asomewhat different line. Counsel for the defendant submitted thatStephen and Nicholas, by the deed of May 23,1895, had not. purportedto convey this property, or purported to convey the contingentinterest to which they were entitled under the fid-ex commissum, but-imagined that they had certain present particular shares or interestsderived another title and had conveyed these non-existent sharesand interest only.
1921.
Lord
Phtllimore
OunatiUekcv. Fernando
During the course of the argument much reliance was placed oncertain English decisions regarding the law of estoppel and on thedecision of this Board in the case of Bajapakse v. Fernando.1 Bythe English law of estoppel, which was a good deal relied upon in the1 {1020) A. C., page 192.
1921.
. Loud.Phillimobe
QunatilleH*>. Fernando
( 390 }
Courts bolow, and which is referred to in the oase of Rajapakse v.Fernando,1 “ where a grantor has purported to grant an interetf!in land which he did not at the time possess, but subsequentlyacquires, the benefit of his subsequent acquisition goes automaticallyto the earlier grantee, or, as it is usually expressed, ‘ feeds theestoppel.’ ” By this doctrine the estoppel is derivedfrom the recitalsof title contained in the conveyance, and it is these recitals, aQflthese only, which the grantor has to make good, so that if he subse-quently acquires the ownership of the property by some other title,the subsequently acquired interest does not feed the estoppel bo asto make the original conveyance effective as against a third party.If, therefore, the provisions of English law were to be applied tothis case, there would be much to be said in favour of the defendant,as the recitals in the transfer of 1895 stated a title which the trans-ferors never acquired.
It appears, however, to their Lordships that, though there is aconsiderable analogy between the doctrine of English law as toconveyance by estoppel, as this Board thought in the case of Raja-pakse v. Fernando,1 the doctrine of the Roman-Dutch law whichprevails in Ceylon is not identical with that of the English law.The mode of reasoning by which it is reached is different, and theconclusions are not necessarily the same. In all civilized systemsof jurisprudence there are many common principles and manyhistorical processes of development which are very similar, and lightmay often be thrown from one system upon another, but when this isdone, the comparison must be handled with care. There is, perhaps,a special danger with a Court constituted mainly of Judges trainedunder the .English system of a too hasty assumption that someforeign system is in a particular-matter identical. Their Lordships,therefore, while not neglecting the benefit afforded by Englishdecisions, have considered that their attention must principally bedirected to'the Roman-Dutch law as governing this case.
, This law admitted what was called the exceptio rei v&nditse ettraditse (Dig., lib. XXI., tit. 3). Under this exception the purchaserwho had got possession from a vendor, who at the time had no title,could rely upon a title subsequently acquired by the vendor, notonly against the vendor, but against any one claiming under thevendor ; and though delivery (traditio) was, as the title shows, a partof the defence, if the purchaser had acquired possession without forceor fraud, he could use the exception, though he had never receivedactual delivery from the. vendor. Also, if he had once been inpossession without force or fraud, and had since lost possession, hecould recover it by the Publician action, using the exception as areplication to any defence set up by the vendor or those claimingtitle under him. (See Voet, Commentary on the Pandects, LXXI.,tit. 3. The principal passages are given in translation in a note to
1 (1920) A. O., page 192.
( 391 )
Rajapakeev. Fernando.1) The principle does not rest upon estoppelby reoital, and is broader in its effect than the English rule.
Still the exceptio given by the Roman law required the doublecondition, not only that the property should be sold, but that itshould be delivered, though the deliverymight in the case mentionedbe presumed by a fiction; and here there was nondelivery of theproperty, and the plaintiff is not and never has been in possession.This objection is that which impressed itself upon the mind of theDistrict Judge. The Supreme Court, however, have thought thatin this particular the Roman-Dutch law as administered in Ceylonhas made a further stride..
The early Roman law, with its simpler methods of business,might be expected to receive modification under a system accordingto which conveyance of land is no longer effected by mere delivery,traditio, the place of which is supplied or which is itself supplementedby writings such as deeds or notarial instruments, particularly if inaddition to these there is a public registration of such documents.Accordingly the Supreme Court in Ceylon has held and apparentlyin conformity with earlier authority that what took place in thiscase is equivalent to traditio. The Chief Justice in his judgmentthus expresses himself : “. . . . Traditio, whether actual or
symbolic, is no longer necessary for the consummation of a saleof immovable property, and has been replaced by the deliveryof the deed. See Appuhamy v. Appuhamy,2 where the wholesubject is lucidly explained. The same protection, therefore, whichthe Roman law gave to a person who had completed his title bypossession, our own law will give to a person who has completedhis title by securing the delivery of a deed.”
Perhaps the matter may be put in this way. A sale made by avendor without title cannot be relied.upon as against a purchaserfrom that vendor after he has acquired title, if and so long as theearlier sale remains in contract only; but if the earlier sale isaccompanied, followed, or evidenced by certain acts which may bedeomed equivalent to the Roman traditio, that sale will prevail.
The deed of 1893 was attested by witnesses and^a notary so as tosatisfy the conditions required by the Ceylon Ordinance, for effectualtransfer of land, and it was registered as another Ceylon Ordinancedirects. In Eajapakse v. Fernando1 their Lordships laid stress uponthe fact that the conveyance on which reliance was placed had beenduly registered, though it should be added that in that case thesuccessful party was. in possession.
Their Lordships think that the view of the Chief Justice, in whichthe other learned Judges concurred, was right, at any rate, as appliedto the.circumstances of the present case. The learned Chief j usticereserved his opinion as to what might be the case if the other party-was, as he expressed it, “a bona fide purchaser for value without
1 (1920) 4. C„ page 192.4 3 8. C. O. 67.
1921.
Lord
Phixlimore
OunatilUket>. Fernando
( 392 )
1921.
liO&D
Phillimobe
GitnatiUeke
v, Fernando
ixotico.” As he truly said, the defendant was a dpnee and not apurchaser, and he unquestionably had notice in 1913 of the trans-action in 1895. Whether the idea expressed in the words “ a bonafide purchaser for value without notice ” is one which is exactlyappropriate to the system of Roman-Dutch law may be a question.Whether the point can ever arise as regards land where the previoustransfer has been duly registered may also be a question. TheirLordships make no pronouncement on these points. They arecontent to say that in the circumstances of this case and as againstthis defendant there was a sufficiency of material to satisfy therequirements of traditio under the Roman law.
There" remains a point much insisted upon by counsel for thedefendant as to the effect of the deed of 1895. The material partsof it are as follows :—
Whereas our father Swarisge Marthelis aMae Marselino Swaris wasseized and possessed of several lands, money, and other movable property,and departed this life intestate at Colombo on or about January 24,1871, leaving him surviving his widow, our mother, Maria Felsinger,otherwise called Sophia Felsinger, and three children, namely, ourselves,the said Swarisge Stephen Swaris and Swarisge Nicholas and our eldestbrother Swarisge Palis Swaris, otherwise called Punchimahatmaya; andfrom the date of the death of the said Marthelis alias Marselino Swaris,our mother, the said Maria Felsinger, had been in possession of all ourshares in the said properties and in the premises in the schedule heretofully described, and enjoying the rents and profits thereof for and onour behalf as our guardian.
And whereas we, the said Swarisge Stephen Swaris and SwarisgeNicholas Swaris, are entitled by right of paternal inheritance, and byother rights acquired by certain title deeds (which are not in our posses-sion) among other properties, to certain undivided shares in the premisesin the schedule hereto fully described.
And whereas we have now attained our respective ages of majority,and have agreed with Gammaduwawattagey Don Cornells Appuhamyof Colombo to sell and convey unto him all our undivided shares, right,title, interest, claim, and demand whatsoever of, in, and to the saidpremises in the said schedule hereto fully described for the price or sumof Rs. 1,000.
Now know all men by these presents that we, the said SwarisgeStephen Swaris and Swarisge Nicholas Swaris, in consideration of thesaid sum of Rs. 1,000, lawful money of Ceylon, well and truly paidto us by the said Gammaduwawattagey Don Cornells Appuhamy (thereceipt whereof we do hereby jointly and each of us doth respectivelyadmit and acknowledge), do hereby give, grant, sell, assign, convey,transfer, set over, and assure unto him, the said GarhmaduwawattageDon Cornelia Appuhamy, 'His heirs, executors, administrators, andassigns all our said undivided shares, right, title, interest, claim, anddemand whatsoever of, in, and to the said premises in the said schedulehereto fully described, together with all the buildings, erections, fixtures,ditches, trees, ways, rights, easements, advantages, and appurtenanceswhatsoever to the said premises belonging or appertaining or usuallyheld or enjoyed therewith or reputed to belong or be appurtenantthereto.
( 393 )
To have and to hold the said shares, right, title, and interest in andto the said severed premises hereby conveyed or intended so to be untohim, the said Gammaduwawattagey Don Comelis Appuhamy, his heirs,executors, administrators, and assigns.
The property is fully described in the schedule, and is the propertymentioned in the fidei commissum. The recitals, however, areincorrect. The property had not been the father’s property; ithad been acquired by Maria under a different title. Stephen andNicholas had no present shares. Maria was not enjoying the rentsand profits as their guardian. If it was a case of the English law ofestoppel, muoh might be said abont this. But for the Roman-Dutchlaw the question is whp>t was the property purported to be conveyed ;and on all principles of construction the recitals can only be looked atfor the purpose of assisting the Court to arrive at the determinationof the actual effect of the conveyance. Stephen and Nicholaspurported to assign all their undivided shares, right, title, interest,claim, and demand whatsoever of, in, and to the property in theschedule. Had they any right, title, or interest at the time ?Supposing that they had none, under the Roman-Dutch law theirsubsequent acquisition would make this transfer effective. Anotherway of looking at it is that they did not know what interest theyhad, but purported to assign all that they had got, and they had acontingent interest, which ultimately vested and is now vested inpossession. This seems sufficient.
It was suggested that if the Courts in Ceylon had taken this view,all the discussion about the exceptio ret judicaUe, &c., might havebeen dispensed with. It would seem that the Judges in the SupremeCourt considered the case as if Nicholas and Stephen had no titlewhich they could convey in 1895, and also that they thought thatStephen and Nicholas had purported to transfer the whole property :and that they so construed the deed of 1895 cannot be questioned.It would, however, certainly look as if the Judges in the SupremeCourt had thought that the deed of 1895 was at the time it wasmade ineffective thus differing from a conveyance of a contingentremainder under English law, which since the enabling Statutewould effectually pass all the interest which the grantor possessedand automatically transfer the property to the grantee when thecontingency happened and the remainder vested in possession.
That under the Roman-Dutch law a vested interest in remaindercan be alienated must be admitted. Both sides claim title undertransfers made during the lifetime of Maria. The Roman law sawno objection in principle to the transfer of things not yet comeinto existence (Dig., lib. XVIII., tit. 1, sections 8 and 34). But as tothe alienability of a contingent interest, there appears to be a dearthof authority. None has been brought to their Lordships’ notice.No doubt the spes which such a remainder-man can alienate, is avery shadowy one, for if he predeceases the fiduciary, his heirs take
13*
1921.
Lord
Phtkltmobb
Gunattllekev. Fernando
( 394 )
1921.nothing (Pereira, Laws of Ceylon, ed. 2, p. 467), and therefore the
—-alienee could take nothing. But there is, at any rate, no indication
Phillimobe ®i^er hliat such an alienation is prohibited by the policy of the law,r—or that an instrument purporting to alienate is so null and void that
vJFernundo ^ canno*1 be looked at for any purpose.
In the Maltese case of Gera v. danker,1 where much inquiry wasmade into the general law relating to fidei commissa, the work ofCardinal de Luca, Lib. X., De fidei commissis was relied upon as anauthority. Nothing specific on this subject has been found in hisbook ; but in his summary of the law he has a title De Alienationibua(pp. 564, 565).
The alienations of which he treats are alienations by the gravotusor fiduciary, and his general observations therefore do not touchthe point under consideration, but he does recognize (Art. 308) theconsent of the owner of the contingent interest as sufficient tovalidate a transfer made by the fiduciary; and when he allows thefiduciary to alienate his* own life interest, he expresses it in this way(Art. 315): “ Procedure, hsec ut dictum est in alienations, quae fat deipsa substantia, seu bonorum proprietate. Seats autem, ubi gravatus,ml fidei commissi possessor alienet solum fas suum, ipsorumquebonorum fructus, seu commoditatem ejus vita durante, cum id nonaccedenle expressa ac speciali prohibitions, non sit in jure prohibitum,mm hsec alienationis species non percutiat bonorum substantiam.neque jus vel dominium in emptorem transferal, ita considerandumloco procuratoris in rem propriam fidei commissarii alienantis, cujusvice ac nomine ad propriam utilitatem fructus, ac emolumenta perciperedicilur
It may, therefore, be that a transfer of a contingent interest iseffective to put the transferee in loco procuratoris. If it is not so,then the worst that can be said of the deed of 1895 is that thepurchaser under it took from vendors who had some interest,which, however, was not transferable. But the purchaser is not ina worse case than he would be if they had no interest at all.
Their Lordships, therefore, think that the plaintiff can availherself of the title which she gets under the deed of 1895 in preferenceto the title of the defendant, and that the decree of the SupremeCourt was rightand they will humbly recommend His Majestythat this appeal should be dismissed, with costs.

172 A. page 657.