( 292 )
Feb. 21, mi
Present: Van Langenberg A.J.
MASSILAMANY v. SANTIAGO.
487—C. R. Colombo, 20,705.
Registration—Priority—Lease by owner—Subsequent mortgage—Priorregistration of mortgage—Hour lease is affected by the prior registra-tion of the mortgage.
C» who was the owner of a land, leased it to plaintiff, and subse-quently mortgaged the same to a third party. The mortgage bondwas registered on October 14, 1907, and the plaintiff’s lease wasregistered on February 22, 1910. The mortgage bond was put insuit, and R purchased the land at a Fiscal’s sale under the mortgagedecree on April 11, 1910, and his Fiscal’s conveyance was registeredon August 25, 1910. Plaintiff was no party to the mortgage action.R obtaineda writ of possession on September 21, 1910, when .thedefendant, who was in occupation of the land as a tenant of theplaintiff, agreed to accept R as his landlord.
In an action by the plaintiff against the defendant for rent,—Held, the plaintiff was entitled to succeed.
“ The only effect of registration was to give priority to thesubsequent deed. The earlier deed is not affected in any way,save that it has to take second place …. The plaintiff’srights as lessee remained alive, and although it may be that thoserights were subordinate to those of the mortgagee, the plaintiffwas not bound by the mortgage decree, he being no party to theaction …. Under the writ issued at the instance of R. thedefendant could not be legally ejected, and his acquiescence in his‘ eviction * could not affect the plaintiff’s position."
HE facts are set out in the judgment of the learned Commis-sioner of Requests (M. S. Pinto, Esq.) :—
This is an action for rent. The defendant says that he was originallythe plaintiff's tenant, but pleads that the plaintiff’s title has expired.This is a good defence if it can be established,
( 293 )
The owner of this land was one Casie Chatty. He leased it to theplaintiff. He afterwards mortgaged it to a C'hetty, who put the bondin suit and obtaining a' decree for its sale, had it sold by the Fiscal.Ramanaden purchased it at the Fiscal’s sale and obtained a Fiscal’sconveyance, whioh was registered on August 25, 1910. The mortgagebond was not registered till October 14, 1907. The' lease was notregistered till February 22, 1910. The mortgage decree was neverregistered. Ramanaden obtained a writ of possession, and on Septem-ber 21, 1910, got the defendant and the tenants in the connected casesto agree to pay rent for him. It is clear that Ramanaden claims underthe Fiscal’s conveyance, and as it was registered after the lease to theplaintiff, the latter document has priority.
The learned counsel for the defendant relied on section 664 of theCivil Procedure Code, and argued that the plaintiff was bound by themortgage decree. But this section does not apply, as the lease wasprior and not subsequent to the mortgage bond; moreover, there isno proof that the mortgagee left an address with the registrar. Theplaintiff ie not bound by the mortgage decree; his title has not beendefeated.
It was also urged that the defendant was evioted, and that therefore. the tenancy under the plaintiff terminated. In fact he was not evicted ;to avoid eviction he agreed to pay rent to the plaintiff. He had noright to enter into such an agreement; and even if he was actuallyevioted, he would not be absolved from liability to the plaintiff; tlioeviction would have been illegal, as the mortgage did not bind thedefendant or the landlord. It is obvious that it is only when the tenantis evioted under a decree which binds his landlord that he is releasedfrom the tenancy. If illegally evicted, the defendant had his remedyat law. The tenant must be loyal to his landlord. The defendant hadto pay rent for April and May to Ramanaden ; but that, fact does notabsolve him from his obligation to pay rent to the plaintiff, who isentitled to it ….
The defendant appealed.
Bawa, for appellant.
Sampayo, K.C., for respondent.
Cur. adv. vult.
February 21,1911. Van Langenberg A.J.—
This is an action by the plaintiff to recover rent from the defendantin respect of certain houses for the. months of April to September,1910. The owner of the houses was one Casie Chetty, who leasedthen) to the plaintiff for a term which, I understand, has not yetexpired. He subsequently mortgaged them to a Chetty, who putthe bond in suit on March 12, 1909, and obtained a decree on April6, 1909. The plaintiff was no party to this suit. Writ issued inthe mortgage action, and the mortgaged properties were seized andsold by the Fiscal and bought by one Ramanaden on April 11,1910.Ramanaden subsequently obtained a Fiscal’s conveyance. The
( 294 )
^Maasila-p many v.Santiago
plaintiff’s lease was registered on February 22,1910. The mortgagebond was registered on October 14, 1907. The decree in themortgage action was never registered. The Fiscal’s conveyance wasregistered on August 25, 1910. Ramanaden obtained a writ fromthe Court to be placed in possession. This writ was executed onSeptember 21, 1910. The Fiscal’s officer entrusted with the writsays that he threatened to turn the* defendant out unless he agreedto pay rent to Ramanaden, and the defendant having agreed toaccept Ramanaden as his landlord vtas allowed to remain in occupa-tion. The defendant raises two points. While admitting that heentered under the plaintiff, he contends that the plaintiff’s title wasdetermined on April 11, 1910, the date of the Fiscal’s sale.
Mr. Bawa’s argument for him was that under section 17 of Ordi-nance No. 14 of 1891 every deed, unless registered, shall be deemedvoid as. against all parties claiming an adverse interest theretoon valuable consideration by virtue of any subsequent deed whichshall have been duly registered ; that the Chetty’s mortgage wasadverse to the plaintiff’s lease ; and that the plaintiff’s unregisteredlease must be deemed void as against the mortgage from October 14,1907, the date on which the mortgage bond was registered ; thatwhen the mortgage action was instituted, the plaintiff had no interestin the land as against the mortgagee ; that, therefore, it wasunnecessary to make him a party to the mortgage action ; that themortgage decree was, therefore, good as against the plaintiff; andthat on April 11,. 1910, when the Fiscal sold the property, all theplaintiff’s rights under the lease were determined. I am unable touphold this contention. Section 17 of Ordinance No. 14 of 1891reproduces verbatim section 39 of Ordinance No. 8 of 1863, and, sofar as I know: it has always been considered that the only effect ofregistration w;: to give priority to the subsequent deed. The earlierdeed is not affected in anyway, save that it has to take second place.The section under consideration provides “ that nothing hereincontained shall be deemed to give any greater effect or differentconstruction to any deed, judgment, order, or other instrumentregistered in pursuance hereof, save the priority hereby conferredon it. ” Mr. Bawa was not able to produce any authority in support ,of his position. I am of opinion that the plaintiff’s rights as lesseeremained alive, and: that, although it may be that those rights weresubordinate to those of the mortgagee, the plaintiff was not boundby the mortgage decree,, he being no party to the action. ~ It followsthat under the writ issued at the instance of Ramanaden the-defendant could'not be legally ejected, and his acquiescence in-his.;“ eviction ” could not affect the plaintiff’s position.
I think the judgment of the learned Commissioner is right, andthat the appeal should be dismissed with costs.
MASSILAMANY v. SANTIAGO