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HALLOCK v. BANDAPPU.
D. C„ Chilaw, 2,779.
Money paid by co-owner of land bo save the sale of it by Fiscal—Mortgagedecree against heir in possession of estate of deceased father, the mort-gagor—Action for recovery of money paid under compulsion.
Where land in which A held a share as co-owner was seized in execu-tion by B for a debt decreed to be due by C as heir in possession of theestate of D, who had mortgaged his share in it to B, and A paid theamount due by C in order to save the sale of his own share in theland,—
Held, that A was entitled, to recover from C the amount so paidunder compulsion.
HE plaintiff prayed for judgment against the defendants forBs. 1,000 with legal interest, and that a certain land be sold
and the proceeds applied in payment of the said amount, allegedto be due to the plaintiff under the following circumstances, viz.,that one Punchirala, being owner of three-eighths of twelveacres of Timbirigahawatta, mortgaged his share to one BastianFernando on 9th March, 1893, for Bs. 400 and interest; that themortgagee assigned his bond to Moses Fernando on 27th January,1900; that Punchirala sold one and a half acre of the same land toHitihami and three-fourths of an acre to Senanayaka, falsely repre-senting to them that there was no mortgage thereon; that Hitihamysold his one and a half acre to Samarakoon, who sold it to theplaintiff on 11th November, 1896; that Senanayaka’s interest wasalso purchased by the plaintiff on 8th March, 1894, in ignoranceof any incumbrance on either of the allotments; that Punchiraladied in 1898 without paying the debt due on his mortgage bondof 9th March, 1893; that his sons (the defendants) who were inpossession of the remaining part of this property did not paythe amount due on their, deceased father’s bond; that MosesFemandq recovered a mortgage decree against the defendantsand seized in execution the land mortgaged to him, whichincluded the portions purchased by, the plaintiff in ignorance ofthe mortgage; and that the plaintiff was thus compelled *to p&ythe amount of the decree to the writ holder, which was theRs. 1,000 he now claimed of the defendants.»
The District Judge (Mj. H. B. Freeman) gave judgment forthe plaintiff.
The defendants appealed.
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Sampayo, K.C., for appellant.—The plaintiff virtually asks fora mortgage decree in his favour. He is not entitled to it withouta cession of action from the mortgagor. D. C., Kalutara, 36,178,(Wendt’s Rep. 7). Punchirala had no right to mortgage more thana half of the land to Bastian Fernando, as the other half belongedto the defendants through their deceased mother, who had beenmarried in community to Punchirala and had died before thedate of his mortgage. The plaintiff’s action cannot be treated asone for the recovery of a mere money debt, because there is noproof that the defendants were in possession of. their father’sproperty (Adagappa v. Babu, 6 8. C. G. 13; Paramanathar v.Paramanathar, 3 N. L. R. 79).
Wadsworth, for respondent.—The plaintiff is in the position ofa joint-debtor, and the rights of sureties apply to joint-debtors.A surety having paid for principal may claim from the principalwhat he has paid without cession of action (Kotze’s Van Leuwen.II., p. 36,46; Pothier, I., 164. s. 282). The plaintiff was compelledto pay the amount of the mortgage debt because the whole landwas to be sold. Even if there was no express request by thedefendants to pay the amount the plaintiff was in the position ofa negotiorum gestor (Pothier, 1., p. 277). The principle generallyapplicable is that where one is obliged to pay what another isbound to pay, the former can claim from the latter the amountpaid. The plaintiff could not have paid only a portion of thedebt and ask for a release of part of the property (Grenier'sReports, 1874, II., p. 21). The donation to the defendants was afraud upon creditors, and is therefore void.
15th March, 1904. Moncreiff, T.—
Three-eighths of twelve acres of Timbirigahawatta were possess-ed by the plaintiff and the defendants. The land had belongedat one time to Punchirala, who sold two and a quarter acres of it,which ultimately became the property of the plaintiff. Theremainder of Punchirala’s three-eighths has been held since'his death five years ago by bis sons, the defendants. Mattersbeing in this position, one J^oses Fernando who held (as assigneeef Bsfetian Fernando) a mortgage bond dated 9th March, 1893,executed by punchirala, and affecting the whole of the three-eighths, put it in sdit« against the two -defendants and obtaineda mortgage decrefe. The plaintiff in this case had been inignorance of the mortgage, because Punchirala had mortgagedthe land under the name of Medamukalana; and when his landwas seized under the writ 'issued iir pursuance of Moses
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Fernando’s decree in No. 2,134 Chilaw, he paid Bs. 1,000, theamount of the decree and costs. That is to say, he depositedthe amount and the mortgagee drew it. He paid under compul-sion the debt which was declared in the mortgage decree to bedue from the defendants to Moses Fernando, and in respect ofwhich the whole of Punchirala’s three-eighths were declaredexecutable. He then brought this action to recover Bs. 1,000from the defendants, and the -Judge has given him judgment forthe full amount as claimed. The decree is that the defendantspay jointly and severally to the plaintiff the sum of Bs. 1,000 withlegal interest from the date of deposit till payment in full.1 think the Judge was right.
By English Law a plaintiff may recover money paid by him forthe defendant’s use, at the defendant’s request. It is not enoughthat the plaintiff’s payment benefited the defendant; it roustalso have been made at his request, express or implied. Arequest will be implied if the plaintiff has paid under compul-sion, or under a threat of compulsion, of law. In Exalt v.Partridge (8 T. R. 308) the plaintiff placed his goods on premisesfor which the defendants were bound by covenant to pay rent.The defendants made default in payment of rent; the landlord,as he was entitled to do, distrained upon the plaintiff’s goods;and the plaintiff—to release his goods—paid the rent. It washeld that the plaintiff acted under compulsion, and that he hadhis remedy against the defendants. In Sapsford v. Fletcher(4 T. R. 501) it was held that the plaintiff acted under compul-sion where being a sub-tenant he was threatened by the landlordof the lessee with a distress upon his goods if he did not paya ground rent due from the lessee to the landlord, and beingso threatened he paid the amount-.
The principle of English Law applies exactly to this case. Theplaintiff’s land was seized for a debt due by the defendants.It- was executable for the payment of that debt because it passedcum. suo onere seu causa, and it would have been sold to meet-that debt. Although he was not a party to No. 2,134, theplaintiff knew that the mortgagee could ultimately cause his land
to be sold to satisfy the mortgage debt.
Punchirala, in selling to the plaintiff’s authors, no! onlyassured them that the land was not mortgaged, but took steps toprevent their discovering that it was. * The prices given forit therefore were reckoned without knowledge on- the part of thevendees that it was liable to be, seized afnd sold for a debt ofBs. 400 with interest. The plaintiff had already paid for thebenefit of Punchirala the equivalent for his risk on the mortgage,
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1804. and he has now paid under compulsion Rs. 1,000 for a debtMarch 15. which was entirely for the benefit of the defendants or their
J.There seems to be warrant for this principle in Roman-DutchLaw also.
It was suggested that, even admitting that the plaintiff is entitledto recover money paid at the request of the defendant, he canonly recover the share of the money which is proportionate tothe share of the land in the hands of the defendants.
It appears, however, that Moses Fernando’s prayer against thetwo defendants in No. 2,134 was that they should pay the debtsecured by Punchirala’s bond; that in default of payment the landshould be sold; and that if the proceeds of the sale were notsufficient to meet the claim, the defendants should pay thedeficiency. The plaint shows that the mortgage action was notfounded solely on the possession of the land by the defendants.The 4th paragraph alleges the death of Punchirala, leaving himsurviving the defendants his children “who have adiated hisinheritance and are in possession of his estate, including theproperty mortgaged.” The action was against heirs of themortgagor who had adiated his inheritance and were in possessionof the hypothecated land. The defendants neither disputed theclaim nor filed answer.
There are some special features in our law on this subject. Amortgagee cannot, as he could under Roman-Dutch Law and as hecould here before the Civil Procedure Code became law, sue forthe realization of the mortgage debt without making the mortgagoror his legal representative defendant. He cannot in generalproceed simply against the land; section 640 of the Code forbidshim. Even where (see section 201) “ the action is to enforce aright of sale under a mortgage,” the decree for sale of the landis subject tc default in payment of the debt within a delay specifiedin the decree. The debt therefore was that of the defendants, andwas not exigible from the plaintiff’s land until they had madedefault.
But, say the defendants—the land was donated to us by deed of
gift on the 16th May, 1894—we are in possession as donees, not
heins. Case No. 2,134, Chilaw, was an action by a creditor of
Punchirala. There has been no administration; there was, as the
defendants say and I *cqn well imagine, a total absence of assets;
and the deed of gift set up by the defendants was. I fear, made in
fraud of creditors and of the mortgagee. .
It will be noted that, having mortgaged this land under thename of Medamukalana in if arch. 1893, Punchirala in the
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following year sold two and a quarter acres of it underthe name of Timbirigahawatta, and donated the remainingtwo and a quarter acres of Timbirigahawatta to. his four sons.By the deed of gift he donated no less than ten lands to his foursons, two of whom survive. The defendant Bandappu says hisfather donated all the property he was entitled to, and in theanswer it is stated that there were no assets. If the contentionof the defendants is correct, the effect of the deed of gift was towithdraw the whole of Punchirala’s property from his creditors,for the disposal of the remaining portion of Timbirigahawattawas part of the same manoeuvre. The defendants, admit that theyare in possession of part of Timbirigahawatta, and of Lankinde-kumbura which is part of the donated lands. They are the soleheirs, and say there was no other inheritance to adiate or renounce.
Punchirala having divested himself of nearly the whole of hisproperty in favour of his sons under lucrative title and sold whatremained, concealing from his vendees that the land wasmortgaged under the name of Medamukalana, the donation was,on the principles expressed in Supramanian Ghetty v. Gunawar-dana (3 N. L. B. 278) and Kanappen v. Mylipody (3 N. L. B. 274),a fraud upon creditors, and cannot be supported. If that be so,the defendants were rightly decreed to pay the debt of theirfather, and the plaintiff is entitled to recover from them what hehas been compelled to pay.
They are in possession as heirs and not as donees. It would bea strange thing if one, having procured an advance by mortgage ofa small portion of his property, could thereupon, selling two anda quarter acres, donate to his children the whole of his remainingestate consisting of ten lands, thus rendering himself insolvent;and that, on his death, his children might repudiate his debt onthe ground that he had left no inheritance to adiate.. I think theappeal should be dismissed with costs.
Latasd, C.J.—I agree.
HALLOCK v. BANDAPPU