075-NLR-NLR-V-12-JAYASINGHE-BANDAR-v.-ELIAS-APPUHAMI-et-al.pdf
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1900.Present: Mr. Justine Grenier.
October 27.
JAYAS1NGHE BANDAR v. ELIAS APPUHAMI et al.
i,C. R., Negombo, 16,953.
Mortgage bond—Purchase by mortgagee of a share of the mortgagedproperty—Release of debt-^Extinetion of the security—Roman-Dutch Law.
Where a mortgagee of immovable property becomes the owner ■of the property mortgaged or any share of it, the mortgage securityis extinguished to that extent, but the debt remains.
A
PPEAL by the plaintiff from a judgment of the Commissionerof Requests (B. Constantine, Esq.). The facts sufficiently
appear in the judgment.
H. A. Jayewardene (V. Grenier with him), for the plaintiff,
' appellant.
No appearance for the respondent.
Cur. adv. wit.
October 27, 1909. Grenier A. J.—
The facts of this case are these. Hendrick Perera mortgaged acertain field by bond No. 6,480 dated October 28, 1899, with LewisSaram Appuhamy as security, for'a sum of Rs. 200. The mortgageeassigned the bond to the plaintiff on December 17, 1904. Afterthe death of the mortgagor and his wife, their children sold half ofthe mortgaged property to Rupesinghe and the other half to theplaintiff and Senanayake. The present action was brought by theplaintiff against the legal representative of the estate of HendrickPerera, duly appointed as such by the Court.
The defendant raised two questions in defence, and the Com-missioner framed the following issues in regard to them :—
(1) Is plaintiff estopped from maintaining this action as he hasacquiesced in the sale to Rupesinghe and by terms ofdeed 6,944, to which he is a party ?
(2) Has the mortgage merged in the sale ?
We are not concerned with the first issue, which the Commissionerlias decided in favour of the plaintiff, but on the second issue he. wasof opinion that the mortgage debt had been released or extinguishedby the purchase by plaintiff of a half share of the property. I havenot had the advantage of any statement of the law or argumentson behalf of the respondent, but in my opinion the Commissioner’sdecision is wrong and cannot be supported. .
The plaintiff appears to have paid valuable consideration inrespect of the half share 'purchased by him, and the debt due on themortgage was therefore not extinguished by such purchase. Had
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lie purchased this half share for the debt due to liim, the case wouldundoubtedly stand on a different footing. The plaintiff’s securityso far as the half share purchased by him was concerned was gone,but that does not mean that the debt due on the mortgage bond wasextinguished. The mortgage as regards the remaining half shareof the land would still remain in force, unless there was any specialbinding agreement whereby the plaintiff waived this security. Theplaintiff was clearly entitled to a decree in his favour for the debtdue to him on the mortgage bond, and also to a hypothecary decreedeclaring one-half of the land executable for the debt. I have notbeen able to discover any authorities exactly in point, but I thinkit may be stated as a broad proposition that where a mortgageepurchases from his mortgagor property mortgaged with liim and paysvaluable consideration for his purchase, the mortgage is merged inthe sale, but the money debt remains all the same, and can berecovered by the mortgagee, if necessary, by execution against otherproperty belonging to the mortgagor, because, for obvious reasons,the mortgagee cannot levy execution on property which is alreadyhis own.
Under the Roman-Dutch Law the right of pledge or mortgageceases in the following cases : (1) When the debt which formed theobligations is discharged by payment, novation, or acceptance ofanother security, compensation or set-off, release of the debt,merger, or the like; (2) by release of the thing mortgaged, thedebt then remaining only as a concurrent and simple contract orunprivileged debt; (3) when a mortgagor sells the things mortgagedwith the consent of the mortgagee; (4) when the thing mortgagedperishes; (5) by effluxion of time when limited by the mortgagedeed; (6) by prescription (Henry's Vanderlinden, p. 181,182, Bk. I.,Chap. XII., section 6).
These exhaust the modes by which the right of pledge or mortgageceases or is extinguished. None of these modes seem to have anyapplication to the facts of the present case, where the mortgageebought only a half share of the property mortgaged and paidvaluable consideration for the same, leaving the remaining half boundto him by the vinculum pignoris for . the debt due on. the bond.
I would set aside the judgment of the Court below and order judg-ment to be entered for plaintiff as prayed for in the plaint, limitingthe hypothecary decree only to a half of the property mortgaged.The appellant will have his costs of this appeal.
1969.
October 27.
Gbeniur
A.J.
Appeal allowed.