048-NLR-NLR-V-08-KALUHAMY-v.-APPUHAMY-et-al.pdf
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KALUHAMY v. APPUHAMY et alD. G. (Interlocutory), Matara, 3,216,
1904.
December 13
Partition of land—Hypothecary action—Mortgage decree—Seizure of Crown landnot bound by the mortgage decree-^Claim inquiry—Civil Procedure Code,s. 247—Decree by consent—Croton land consented to by claimants to bedeclared executable—Claimants1 want of title at time of consent—Fiscal'ssale of land declared executable—Claimants' acquisition of title to the landafter Fiscal's transfer—Theirsaleafter acquisition of suchtitle—Inval-
idity of the second sale.
Where, in a hypothecary action, a mortgage decree having been* obtained, the mortgagee caused to be seized land not bound by the decreeas land belonging to the mortgagors, and certain persons put forward afalse claim, which, on an action instituted by the mortgagee as plaintiff,was set aside by a decree given with the consent of the claimants, whoallowed the non*mortgaged land that had been seized to be declaredexecutable, as though it weretheirproperty;and where 'thesame land
was afterwards sold by • the Crown,the trueowner, to somepersons, of
whom were some of the claimants, and where the claimants after thepurchase from the Crown soldthe. land theybad already allowed to be
decreed away to the mortgagee,—
Held, that the second sale was invalid, inasmuch as, though theclaimants when they effected the sale had a true title, which was ‘lackingto them when they consented to the- decree, they were nevertheless boundby the decree which they had consented to for their own purposes.
fT^HE plaintiff brought this case to have ft, land called Puwakgaha-
* addarawatta partitioned. His title to a share of this landarose as follows. He had a mortgage given him by Dines, Carolis,Pedris, and Babahamy of the nine-tenths part due to the planter’sshare of the trees. He put the bond in suit, ahd after obtaining amortgage decree pointed out for seizure and sale not merely theinterest actually mortgaged, but also two-sevenths of the soil whichwas the property of the Crown.
On seizure a claim was made by (1) Salman ,(2) Dingiappu,and (3) Don Andris. The plaintiff brought an action for a declara-tion of title under section 247 of the Civil Procedure Code.Thereupon the claimants, who had really no, title to the land,collusively with the plaintiff allowed a decree to be entered againstthem for the nine-tenths part due to the planter’s share and thetwo-sevenths part of the soil, which were declared by the decreebound and executable.^
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The plaintiff himself bought the interests at the Ftecal’g sale.
Subsequently to the Fiscal’s sale Salman and . Dingiappuacquired title each to a one-sixth share of the two-sevenths of theland which they had consented to be decreed %way as executable
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1904.
December 13- before they had any title whatever therein. They then sold their
shares to one Luishamy. In the present action the learned District
.Judge declared that the sale to Luishamy gave her a valid title*
Against this order the plaintiff appealed.
The case came up for argument before Layard, C.J., and.Mon-cyeiff, J., on the 23rd' November, 1904.
Allan Drieberg, for appellant.
Loos, for respondents.
Cur. adv. vult.
13th December, 1904. Moncrbiff, J.—
In 1884 Dines, Carolis, Pedris, and Babahamy mortgaged to theplaintiff “ nine-tenths part due to the planter’s share of the trees ” onthe Crown land Puwakgaha-addarawatta planted by Carolis andPedris. The plaintiff obtained a mortgage decree in 1891 againstCarolis, Pedris, Babahamy, and the widow of Dines. By the decreethe above “ nine-tenths part of the trees of Puwakgaha-addara-watta ” was declared bound and executable. The plaintiff,however, pointed out for seizure and sale not only the planter'sshare, but two-sevenths of the soil of Puwakgaha-addarawatta.
A claim was put forward, I suppose to the whole of the propertyseized, by (1) Salman, (2) Dingiappu, (3) Don Andris.
The claim led to an action by the plaintiff against these claim-ants under section 247 of the Civil Procedure Code. The actionwas compromised and a decree entered by consent, by which theclaim was set aside and " the planter’s share of the trees of the. newplantation and the two-sevenths part of the soil of the land calledPuwakgaha-addarawatta ’ ’ were declared bound and executableunder the plaintiff’s writ. The two-sevenths part of the soil hadnot been affected by the plaintiff's bond; but the plaintiff boughtthe interests so declared bound and executable and obtained aFiscal's transfer for them on the 14th October, 1895.
On the 25th November, 1899, a Crown grant of Kudawellewatta,of which Puwakgaha-addarawatta is a divided portion, was givento the plaintiff, Carolis, Salman, Dingiappu, Punchiappu, andKaluappu.
This is a suit for the partition of Puwakgaha-addarawatta, ot0 which Kudawellewatta is said to be the southern boundary. Theplaintiff has been allotted the planter’s half share of all the plan-tations and the house. She claims the two-sevenths share of thesoil and appeals. The respondents are: (1) Salman, the twelfthdefendant; ' (2) Luishamy, the twenty-second defendant; (3)Carolis, the tenth defendant.
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Salman, the twelfth defendant, has transferred his one-sixth 1904*to Luishamy, the twenty-second defendant. Luishamy also hasDecertlber &the one-sixth share of Dingiappu, who was a party to the Moxobbivf,consent decree in the claim action, and one of- the six purchasers J-under the Crown grant. Salman, the twelfth defendant, itmust* be remembered, was a party to the claim action and agrantee under the Crown grant. Carolis, the tenth defendant,
* waS a planter of the land, a mortgagor, and one of the granteesnamed in the Crown grant.
It seems to have been known to all the parties, when theconsent decree was entered in the claim action (12th August, 1891),that the land was the properly of the Crown; that it was notaffected by the mortgage bond;, and that it was not declared boundand executable by the mortgage decree. But when the plaintiffbrought her action under section 247 of the Givil Procedure Godeshe undertook to prove—in the face of the facts—that two-sevenths of the soil were excutable under her mortgage decree.
The claimants, of whom Salman and Dingiappu were two,admitted by the consent decree that two-sevenths of the landwere executable.
The, allegation is that they ' * caused or permitted the plaintiffto believe a thing to be true and to act upon such belief/' The“ thipg " was that two-sevenths of the soil of Puwakgaha-addara-watta were executable under the plaintiff's mortgage decree; butthe claimants did not cause or permit the plaintiff to believe it.
Nor did she believe it, for she knew it was not true. I think,therefore, that there was no estoppel in pais within the meaningof section 115 of the Evidence Ordinance. I must frankly confessthat I cannot construe section 40 of the Evidence Ordinance; butSalman and Dingiappu and therefore Luishamy are, I shouldsay, judicially bound by the consent decree. The decree wasapparently collusive, but are the claimants who consented to it fortheir own purposes to be heard to say that it does not bind them ?
In the action the plaintiff undertook to prove that the propertywas liable to be sold in execution of her mortgage decree, and theclaimants admitted that it. was.,
The position of Carolis is different. He never sold the land to theplaintiff; he did not mortgage it to her; the mortgage decreeobtained against him did not affect it; he was not a party to theconsent decree; he never said it was his land. Other persons*claimed it, and the plaintiff had it seized and – sold under thedecree she obtained against him; but how was he responsible forthat ? The plaintiff knew that he had described the land asCrown land.
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Nor do X think that the plaintiff can rely upon the retort offllB<w6grdominium acquisitum. If a vendor hasa rightat the time of
MoHOBBorv, alienation whichis defective, and thatright isconfirmed after
sale, from the moment of confirmation the defective right of thepurchaser-jdso is confirmed (Voet 21, 3, I). But at the time ofthe plaintiff’s purchase at the Fiscal’s sale Carolis had no right andpretended to none, and therefore this is not a case in which avendor’s right, defective at the date of sale, was confirmed after-wards.
Voet refers tothe Digest (6, I, ft. 72,rei vindicatio):" If you
buy the farm ofSempronius from Titius,and it isdelivered to you
for a price paid, and thereafter Titius succeeds as the heir* ofSempronius and sells and delivers the same land to another, it is
more just that you should be preferred If he is in possession
and you sue him, you will be able to meet his exception with thereplication dominii (<acquisiti).” (See also Dig. 21, 3, 2,)
But I do not understand that Carolis sold this land to theplaintiff. If he had pointed it out for seizure, or had connivedat the seizure, it might be different. But there is no evidence tothat–effect; and a Fiscal, when he sells in execution, does not sellas agent for the debtor—least of all when he is selling what doesnot belong to the debtor. He professes to sell the right, title, andinterest of the Judgment-debtor; but he took upon himself to sellin this case two-sevenths of the soil which were no part of theright, title, and interest of Carolis, and which Carolis had statedto belong to the Crown. Carolis was not the vendor. I do notthink that when a judgment-creditor causes to be seized and soldand buys land which the judgment-debtor truly states to be'Crown land, he can obtain a sound title to it subsequently simplybecause the judgment-debtor acquires it from the Crown.
Property which belongs to a third party is not saleable, unlessthe purchaser at least was ignorant of the fact, or the parties, ifthey were aware, negotiated bond fide (Cens. For. 1 4, 19, 21). Apurchaser of such property who is ignorant of the truth has aclaim for damages against the vendor who knowingly andwillingly deceived him, hut if he knows the truth, and has notsecured himself as against his vendor, he cannot even recover theprice he paid. (Van der Keesel, 641; see also Codex, 8, 45, 27.)Van> Leeuwen (Cens. For. 1, 4, 19, 14), in observing that ar vendor must-hot be enriched at the expense of the purchaser, andthat he should not make profit out of fraud, adds:“ Unless the
purchaser knew from the beginning that the thing boughtbelonged to.another, or that another person had some right overit—in which case the vendor is not even bound to restore the
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purchase price, unless he has expressly stipulated that he should 1904*
do so in case of evictionAnd since this holds in a doubtful Dee&nber ld.
or uncertain case, as Grotius rightly says, it seems to me to hold Monobbot,much more in a case where a person has bought a thing knowing J*that it belongs to another or that another person has some rightover it.”
I do not think that one person can claim at the hands of anotheran interest in land which that other did not sell, and did not ownuntil after the claimant had bought it at a Fiscal's sale, wellknowing that it was not the property of the judgment-debtor.
I think that the appeal should succeed as regards Salman andLuishamy, and that they should pay the appellants’ costs. Asregards Carolis, the appeal should be dismissed with costs. Thedecree of the District Court should be varied by allotting to theplaintiff two-sevenths of the two-sixths of the land which theDistrict Judge gave to Luishamy, i.e., twelve forty-seconds toplaintiff and two forty-seconds to Luishamy.
Layabd, C.L—I agree.