Jiegutration—Priority—Merger of two land*—Registration in a newfolio—Fraud »» obtaining deed.
A deed which has been registered on a wrong folio is void asagainst parties claiming an adverse interest on valuable considera-tion by virtue of a subsequent deed which has been duly registered.
Where two lands previously registered are consolidated andregistered in a different folio without reference to the previousregistration of the separate lands, the registration was held to havebeen made in the wrong folio. A subsequent deed does not gainpriority by registration if there is fraud in obtaining the deed.
HE facts are set out in the judgment of the District Judge(L. W. C. Schrader, Esq.):—
This is an action for the partition of a small lot of land, Punohiliadda,corresponding with lot V 843 (or T. P. 76,519) of 1 rood and 16 perches,in Crown tracing of 1868.
The plaintiff seeks topartitionoff hisinterestof one-fourth acquired
by him upon deed of transfer 616 of November 26, 1913 (P 3).
Tbs case is that the lot was purchased from Crown by Jusenis andJuan Fernando. Jusenis left two children, first defendant and Ambrose,each of whom became entitled to a fourth, and Ambrose sold hisshare' to plaintiff. Juan, by deed of July, 31, 1886 (3 D 1), conveyedhis half of the land to Francisco Fernando, the father of the fourth tosixth defendants, whowith thewidow(thirddefendant) arenow
entitled to it.
The first and second defendants filed no answer, but mentionedthat their rights had been sold to one Girigoris, who was made addedparty, and has alone filed answer. His answer is that V 843 belongedtp Juan and Jusenis, and U 483, the lot to the east of it, knownas Baranawedageliadda,belonged -to Juan and Kaithan. Thethree
owners agreed to possessthetwo lots in common, Juanof course
having half and KaithanandJuseins each afourth share, and that
they possessed on this footing.
In accordance withthisagreement andBystem ofpossession,
Ambrose sold to him (Girigoris) by deed 8,705 of March 25, 1909 (7 D 1),his one-eighth share of the combined lots under the name Baranawedage-liadda, while first defendant (Christina) sold to him her one-eighthshare of the contiguouslots (giving bothnames),but within thesame
one set of boundaries, bydeed783 of August23, 1913 (7 D 2). By
these two deeds he became the owner of one-eighth of the two lands,and by common consent of the other owners came to an. agreement andeffected a partition with them on October 14, 1913, as shown on pjan119 (S' D 2), whereby he became the owner, of lot C, the third to sixth163. W. B 18888 (7/68)
( 482 )
defendants owners of lot A, and the other owners (presumably therepresentatives of Kaithan's interest) the owners of lot B.
The plaintiff restshis case entirely on theissues ofpriority of
hisdeed byvirtue of registration. The registerof lands shows that the
original Crown grant P1 wasregistered on folio40 of vol.A 27. The
same folio was used for the registration of Juan's conveyance to Fran-ciscu (9 D 1). Thencomesa reference,“ Forsubsequenttransactions
see A 202/941." There we find the plaintiff's deed (P 9) from Ambrose,aswell asamortgage 1,040/90-1-14 by thirddefendant. On theother
hand,thefirstofadded defendant's deeds,that from Ambrose(1909),
7 I> 1, is registered on folio 136 of vol. 176 under the title Baranawedage-liadda, and hissecond deed, that from .Christina(first defendant), 7D 2,
is registered on again an unconnected page, viz., folio 28 in vol. A 202.
The contention forthe‘defenceis that where twoadjoining lands
aremergedbythe owners their boundaries aredifferent, and theymust
necessarily ' be registered on a different folio from the deeds affecting aland which is only a portion of them. 1 am of opinion that this isclear common sense.Anestate,for example, is builtup of a number
of separate parcels of land acquired singly. It would be absurd toexpecttofindthetransactions affecting theestateto follow theregis-
tration of the lots of which it was composed.
It 1 is absolutely certain thatthe plaintiffhas prevaricated,and almost
perjured himself overthesteps hetook before plunginginto this litiga-tion. He has shownthathe hadno serious intentionof effecting an
amicable partition at all, and he feigns complete ignorance of the factawhichBtood intheway of a partition beingeffected. No one canbelieve
him. He Jives about fifty fathoms off the. land, and is a cousin ofseventh defendant. He hasknown the*landforthirty-eight years.
Surelyitwouldberidiculous to believe thathe didnot know intimately
what was going on,didnot seeor hearof the survey,never heard of the
intention ofthepartiesto divide the land. Hisstudiousindifference
to his cousins building on B&ranawedagewatta or as to his rights makesit dear that ignorance cannot be credited to the plaintiff. His purchasewithin a month oftheactualamicablepartition, andfailure to discover
before his purchasethatthe land hadbeen sold byhis vendor under
a different name, is not reconcilable with due diligence. Why thesudden desiretoacquirea share • of this land which ' hehad known
uncultivated and unoccupiedfor fifteenandhadaltogether known
for thirty-eight years ?
I am doubtful thatdefendant's deeds ean beheld tohave been
registered onthewrongfolio merely because they are .not registered
in the same folios as the deeds affecting Punchili&dda or folios connectedby a reference. But certainly1 think plaintiffdidnot make such due
inquiries before purchase asto entitlehimtoany sympathy. My
belief is that he and the vendor (who he has not called to defend thetitle) conspired together to see what could be dene to make a littlemore out of rights which the vendor had already alienated. Thevendor, of course, had a guilty knowledge—for he had sold all his right—and he was committing fraud with .the plaintiff. It is not possible tobelieve that plaintiff was so careless or confiding as to have been ledastray. No, he went in with open eyes to see whether he could notget a bit of the land himself, as he suddenly thought it might be ofsome use for building on if he could get a little.
( 483 )
.Inthenext place,before plaintiff's purchasethepartieswho
owned -haddivided theland. And Punchiliadda thenbelongedto
third to sixth defendants ■Ambrose had no title tosellanythingin
itto plaintiff. If Ambrose’s sale toplaintiffwererecognisedby reason
ofpriority of registration, it wouldbe thethirdto sixthdefendants,
whoare entirelyinnooent partiesinconnection, withthesales orregis-
tration of the deeds given by Ambrose and first defendant, who wouldsuffer.
That is, the plaintiff comes in too late with his purchase. He mayargue that his deed should prevail to benefit him. In competition'betweenhimand seventhdefendant he cannot arguethat it should
prevailinhisfavouragainstequallyinnocent partieswhohave
exchanged their bona fide property with the seventh defendant..
He cannotaskthatafourthofthisland, which iBclearlytha
third to thesixth defendants',should be given up tohim becausehe
has gotabetterrighttoit thantheseventh defendant.He would
have been entitled to the argument had he been the holder of the titleat the timeof the partition and had his rights beenignored. Butas
thiswas all donebefore he acquiredanyrights, allthathetookmost
be subject tothe disposition ofthe land that had preceded, and, as the
title then was, his deed conveyed him nothing.
So thaton two gronndsI answer the plaintiff’ssecond issuein
the negative :—
(а)Iamnotabletoholdthatthedefendants’ titledeedsare
wrongly registered.
(б) That even if they are, the plaintiff mast be the sufferer rather
than thepresent ownersoftheproperty, whoare-bonafide
holders, and it is veryfarfromclear thatthis istheesse
with plaintiff.
S. I therefore dismiss the action with costs.
A. St. V. Jayewardene, for plaintiff, appellant.
Bawa, K.C., for third defendant and seventh added defendant,respondent.
Cur. adv. vult.
November 4, 1914. Wood Renton G.J.—
The contest between the plaintiff-appellant and the seventhadded respondent is as to a fourth share of the land sought to bepartitioned. The plaintiff claims this share on a deed of transferfrom Ambrose Fernando, a son of Jusenis Fernando, one of theoriginal owners, dated November 26, 1913. The seventh addeddefendant claims the same share on a deed of transfer from the samepurchaser dated March 25, 1909. According to the plaint the land indispute is Punchiliadda. The claim of the seventh added defendantis based on the assumption that Punchiliadda has. been consolidatedwith an adjoining land under the name of Baranawedageliadda.The learned District Judge, after hearing evidence on both sides,has adopted the seventh added defendant's contention on thispoint, and I do not think that his finding on the question should bedisturbed now.
Aforttu e.Fernanda
Renton C.J.
Mariku v.Fernando
( )
The main issue in the case may be stated thus. The root of titleof Jusenis Fernando and his co-owner Juan Fernando was a Crowngrant dated October 5, 1870. This Crown grant was registered in-folio 40 of vol. A 27. The plaintiff’s deed is registered in the samefolio. On the other hand, the seventh added defendant’s deed ofMarch 25, 1909, is registered in folio 186 of vol. 196 under the titleBaranawedageliadda. It is now the settled law of this Colony(see Mohammadu Salt v. Isa Nwtohia,1 Paatis v. Perera,2 and 268—D. C. F. Chilaw, 741 *) that a deed which has been registered in awrong folio iB void as against parties claiming an adverse intereston valuable consideration by virtue of a subsequent deed which hasbeen duly registered. The plaintiff claims the benefit of thisprinciple. He contends that the original root of title being theCrown grant of 1870, all the subsequent dealings with the landshould have been entered in the same folio in which the Crowngrant was registered, and that, as his deed complied, while the deedof the seventh added defendant did not comply with that require-ment, the former has priority over the latter. The seventh addeddefendant, on the other hand, relies on the merger of the adjoininglands under the name of Baranawedageliadda, and contends that,where such a merger takes place, the boundaries of the consolidatedlands become different, and must necessarily be registered ina different folio from the deeds affecting one of the lands so consoli-dated. An issue was framed at the trial on these conflicting con-tentions in the following terms:“ Has the added defendant’s deed
dated March 25, 1909, been duly registered, that is, in the properfolio ?” The burden of proving a negative answer, to that issue ofcourse, rested on the plaintiff. He called as his witness Mr. £. C. D.S. Gunesekera, a clerk at the Land Registry. Mr. Gunesekera’sevidence is not altogether satisfactory. In his examination-in-chiefhe supports the case for. the plaintiff. In his cross-examination heseems partially to veer round to the side of the seventh addeddefendant. His re-examination, however, restores him to hisoriginal position. I think that what he intended to say was thatwhere two lands previously registered are consolidated and registeredin a different folio, the usual course is to insert entries in the registra-tion entry of the first of the two lands showing the connectionbetween them, but that there are other indexes in the register bywhich that connection can be traced. In that state of the factsthe seventh added defendant’s deed was, in my opinion, registeredin the wrong folio: There was, however, also an issue as to whether,even if that deed had been registered in the wrong folio, the plain-tiff’s deed ** Was entitled to prevail by reason of its prior registration.”Under this vague issue the learned District Judge went into thequestion of the comparative good faith of the plaintiff and the
* (1911) 16 N. L. R. 157.1 (1912) IS N. L. R. 148.
» S. C. Mins., October 7,1914.
( 485 )
seventh added defendant, and held that the latter and his vendor 1014.
had “ conspired together to see what could be done to make a little
more out of rights which the vendor had already alienated.” If RBimmCjr.
this conduct amounts to " collusion in obtaining ” his deed within Morftu c.
the meaning of section 17 of the Land Begistration Ordinance, 1891 Fernando
(No. 14 of 1891), the plaintiff's deed must prevail. In my opinion it
does. The law has now been authoritatively declared to be that mere
notice of the existence of a prior deed, or, for that matter, of the fact
that it was registered in the wrong folio, would not have prevented
the plaintiff from taking a conveyance of the land and getting hiB own
d6ed registered in the proper folio. See Kirihamy v. Kiri Banda 1
and Aserappa v. Weeratunga. 2 But the present case is different.
What is here found is collusion in obtaining the deed itself, not themere act of taking advantage of a legal right to obtain priority ofregistration. Section 17 of the Ordinance of 1891 (No. 14 of 1891)contemplates fraud in obtaining a deed as well as fraud in connectionwith its registration. I agree with my brother Ennis that thejudgment of the District Judge can be supported on this ground, andthat the appeal should be dismissed with costs.
Ennis J.—
In this case the only question on appeal is whether documentNo. 8,705 of March 25, 1905, registered in a new volume and folioof the register, can take priority to the subsequent documentNo. 516 of November 26, 1913, dealing with the same land whichwas registered in the volume and folio of the register in which theoriginal Crown grant of the land had been registered in 1870.
Section 24 of Ordinance No. 14 of 1891 prescribes that “ whenany property which shall have been once' registered shall be sub-
sequently soldthe deed or instrument purporting to
transfersuch properly shall state the volume and folio of
the register in which such property bad been previously registered
”. The deed No. 3,705 of March 25, 1909, did not comply
with this requirement, and, -notwithstanding that the land in disputemay have been merged with an adjoining land and have been dealtwith as a single land, the failure to comply with the terms of section24 would, in my opinion, ordinarily give a subsequent deed properlyregistered the priority, as the registration of the earlier deed in anew folio could not have been iqade with such references as toidentify the land with the original registration, and section 17 of theOrdinance would apply. Section 17, however, makes a provisoagainst fraud or collusion, and in this case the learned District Judgehas found that the appellant and his vendor conspired together, andthat there was fraud in the transaction. I see no reason to difie?from the finding of fact which causes the later deed to lose thepriority it would otherwise have gained.
'{1911) 14 N. L. B. 284.
(1911) 14 N. L. R. 417.
In a partition action the absence of a specific issue would notby itself be a ground for setting aside the decree, and in this caseI find that the defendant’s counsel in the course of the ease raisedthe objection 'of fraud. I would dismiss the appeal with costs.
Appeal dismissed.