MIRANDO v. COUDERT

017-NLR-NLR-V-19-MIRANDO-v.-COUDERT.pdf


( 90 )
1916.
Present: Ennis -I. and Shaw J.
MIRANDO v. COUDERT.
46—D. C: Negombo, 10,606.
Fidei commifieum—Donationinfavour of donee,herheirs, executors,
administrators, and assigns—" Under the bond of ,, fidei commis-sum ”—Application by donee to Court for power to sell fidei com-missura property—Minorchildren not represented by guardian ad
litem—Order of Court authorizing sale—Judgment in rem.
A deed of gift contained the following clause:—" To have and to
hold, the ^said premisesunto her, the said I. M., her heirs,
executors, administrators, . and 'assigns, under the following con-ditions, towit:—Thatthesaid I. M., her heirs, executors,adminis-
trators, and assigns, shall not sell, mortgage, give in rent morethan two years at a time, exchange, or otherwise alienate the saidpremises and honse, and shall 'only hold, possess, and enjoy thesame, if necessary by giving in rent for a term not exceeding twoyears, and at the expiration of the said term of two .years againgiving inrent for atermnot exceeding twoyears, and so.on, suc-
cessively for ever, by the said I. M. and her aforewritten, from
generation to generationunder the bond of fidei eom-
missum; and at the event that there . shall be no heir of the saidI. M. toinherit thesaidpremises, then thesameshall bedevolved
to the Roman Catholic Church.**
Held, that the deed created a valid fidei commissum in favour olthe heirs of I. M.
I. M. and her husband presented a petition. to the District Courtpraying for an order, under Ordinance No. 11 of 1876, declaring the
i (1898) L.. R. 2 Ch. 680.
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prohibition in (he deed of gift null and' void,and authorizing
the sale of the property to the defendant; and the appropriationof the proceeds by ' the petitioners. No separate guardian ad litemwas appointed to represent the minor children. The Court entereddecree practically in the terms of the application.
Held, that' the purchaser at the sale ordered by the Court was notbound to lookbeyond theorder of theCourt, or to examinethe
proceedings, orchallengethediscretionof the Court beforehe
could safely purchase.
Per Shaw J.—A guardian ad litent should have been appointedto representthe infantchildren, whose interests were clearly
adverse to their parents (the applicants), and the declaration thatthe prohibitionwas void andinoperativewas wrong, 'and wasnot
authorized by the Ordinance' ……. The order for sale, how-ever, is authorized by the Ordinance, and that order having beenmade, it is, inmy opinion,inthe natureof a judgment in rent,and
valid as against all the world until it is set aside.
fjl HE facts are set out m the judgment.
Bawa, K.C., for appellant.
SamaTawichreme, for respondent.
Cur. adv. vult.
March 20, 1916. Ennis J.—
The first question for consideration in this appeal is whether thedocument of November 10, I860 (P 1), by which the land indispute was gifted to Isabel Mirando, created a valid fidei commissumin favour of her heirs. The material paragraph in the deed rims: —" ‘ To have and to hold the said premises …….. unto her, the said
Isabel Mirando, her heirs, executors, administrators, and assigns,under the following conditions, to wit:—That the said Isabel Mirando,her heirs, executors, administrators, and assigns, shall not sell,mortgage, give in rent more than two years at a time, exchange, orotherwise alienate the said premises and house, and shall only hold,possess and enjoy the same, if necessary by* giving in rent for a termnot exceeding two years, and at the expiration of the said term oftwo years again giving in' rent for a term not exceeding two years,and so on, successively for ever, by the said Isabel Mirando and her
aforewritten, from generation to generationunder the
bond of fidei commissum; and at the event that there shall be noheir of the said Isabel Mirando to inherit the said premises, then thesame shall be devolved to the Roman Catholic Church."
The words " for exer ", “ from generation to generation ", " underthe bond of fidei commissum ”, and that the gift over, should there beno " heir to inherit ", leave no doubt in my mind that the doneeintended to create a fidei commissum in favour of Isabel Mirando'aheirs and the church. The learned Distriet Judge, however, heldthat the document P 1 created a fidei commissum in favour of thechurch, but not in favour of Isabel’s descendants, and arrived at
lots.
Mirando v.
Ooudert
( 92 )
1916.
Emus J.
Miranda v.Coudert
this conclusion on the authority ot Coudert v. Don Elias.1 Thatcase' is not, in my opinion, an authority for the proposition. In thatcase the heirs were extinct, and. hence the gift overtook effect.Words used in the document in that case are veiy similar to thewords used in P 1, and it was held that they created a valid fideicommissum. Clearly the persons to be benefited were the heirs, andon failure of heirs the church. In the present case I see no difficultyin the words “ her aforewritten,' ’ for the immediate context, '* fromgeneration to generation," and the subsequent refereuce to failureof heirs to inherit, show conclusively that the heirs alone are meantto be designated. I would hold, then, that P 1 creates a validfidei commissum, in favour of Isabel's heirs.
The second question for consideration is, What is the effect of thedecree in entail case No. 4 ? It appears that on September 6,1888, Isabel Mirando and her husband presented a petition to theDistrict Court of Negombo praying for an order, under OrdinanceNo. 11 of 1876, declaring the prohibition in the document P 1 nulland void, and authorizing the sale of the property to the presentdefendant, and the appropriation of the proceeds by the petitioners.The Judge directed notice to issue to the parties interested, and afterthe hearing made order on October 28, 1868, disallowing the claimo£)one S. de Croos, and adding: " The heirs are children whose
interests are best looked after by their parents I think
it proper and consistent, with a due regard to their interests, toauthorize the sale. It is not easy, in view of the subsequent formalorder, to say what this order meant. On the face of it, as it wasmade with a due regard to the interests of the children, it would ,seemto imply that the children had an interest under the fidei commissum,and that it was not necessary to further notice the children, as theCourt accepted the parents as their guardians. The order did notcontain anydirectionfor thedisposal of the proceedsof the sale.
.The formalorder onthis isdated October 30, 1888, and, after
authorizing the sale, proceeds to • declare the prohibition in thedocument P 1 null and void, and to direct the money realized to bepaid to the applicants.
If the prohibition were null and void, then the children hadno interestin theproperty. Further, the orderto pay the
proceeds to the applicants infers that they were absolutely entitled.The formal order, therefore, does not agree with the orderof October23,1888. Thedeed of transfer wasexecuted on
October 24, 1888, and recites that the Court was satisfied thatthere was reason and cause to dissolve and set aside the entail,** if any there be ”, created by the document of November 10, I860.
– The points now argued are. (1) that the proceedings are bad,as there was a gift over to the church, and that by section 12 of theOrdinance the Court had no jurisdiction; and (2) that the heirB
1 (1914) 17 N. L. R. 129.
IMS.
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were not properly noticed, and the order, if good, does not bind
them. On the first of these points I am unable tc agree with the Enwb j-finding of the Court below. Section 12 of Ordinance No. 11 of 1876 Mirando venacts: “ Nothing in this Ordinance shall be held to apply to any Oouderthnm.ovabie property held or possessed, or which may hereafter beheld or possessed by, or to any grant, devise, or conveyance to orfor tiie benefit of anychurch. ”
The property at the time of the entail case No. 4 was not possessedby the church, and the word “ hereafter ” refers to the date of theOrdinance, and not-to the date of the entail action. .Section 12, inmy opinion, was not intended to prevent the .use of the Ordinance,by persons taking under a fidei commiesum, by the Insertion of an' ultimate gift over to the church or any of the other associationsmentioned in the section, but to indicate that the Ordinance did notappl^ to persons who successively held in trust for such association.
On the second point I find some difficulty. The deed of 1888 wasbefore the enactment of the present Procedure Code, which providesfor the appointment of guardians ad litem ,to represent minorsin legal proceedings. It has been strenuously urged, where theinterests of the natural guardian and the minor were in conflict, thenatural. guardian could, not under Roman-Dutch law represent theminor, and if he did the proceedings would be bad. The argumentis one. of some force, but I doubt if it would apply to proceedingsunder the Entail Ordinance, which was meant to entail restrictionson alienation, to provide for a sale of entailed property, and tosecure the interests of reversioners by the substitution of otherproperty. I am inclined to think that a purchaser at a sale orderedby the Court under the Ordinance would not be bound to look'beyond the order of the Court, or to examine the proceedings, orchallenge the discretion of the Court before he could safely purchase.
Such a position might render the provisions of the. Ordinanceregarding sales nugatory, or seriously affect the value of the property.
I need not consider the point further, as there is another 'whichdecides the matter. The Entail Ordinance only requires notice tobe given to those “ living ” who are interested. In this case theplaintiff states in her plaint that she came of age “ about 1910 ”.
If so, she was not alive in 1888. There is no evidence as to the dateof her birth, and in the absence of it she has not established her case.
The proceeding by separate action seems, to me, to be irregular.
I can see no reason why application should not have been made inthe entail case under section 480 of the Civil Procedure Code. Therecord in that case indicates that the. parents of the plaintiffintended to purchase other land with the proceeds of the sale. Itmay well be that this was done, and that a new order in that casecould have been made for securing the interests of the reversionerswithout disturbing the purchaser at the sale.
I would dismiss the appeal with costs.
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Shaw J.—
By deed of gift, dated November 19, 1869, one Manuel Minmdogifted to bis niece, Isabel Mirando, certain landed properly, “ Tohave and to hold the said premises and every one of their appur*tenanoes unto her, the said Isabel Mirando, her heirs, executors**administrators, and assigns, under the following conditions,.to wit:-*—That the said Isabel Mirando, her heirs, executors, administrators,and assigns, shall not sell, mortgage, give in rent more than twoyears at a time, exchange, nor otherwise alienate' the said premisesand house, but Bhall hold, possess, and enjoy the same, if necessaryby giving in rent for a term not exceeding two years, and at theexpiration of the said term of two years again giving in rent for.aterm not exceeding two years, and so on, successively for ever, bythe said Isabel Mirando and her aforewritten, from generation togeneration, subject to all • Government impositions whatsoever,under the bond of fidei commissum; and at the event that there shallbe no heir of the said Isabel Mirando to inherit the said premises,then the same shall be devolved to the Homan Catholic Churchknown and called Saint Mary’s Church, of Grand street, in Negombo,and shall be the property of the said church."
The grantor died without having revoked the deed of gift, andin the year 1888 Isabel and her husband applied to the DistrictCourt of Negombo asking for aq. order, under provisions of theEntail and Settlement Ordinance, 1876, declaring the prohibitionagainst alienation contained in the. deed of gift to be null and void,and authorizing the sale of the premises, and the appropriation bythe applicants of the proceeds of the sale to their use aud benefit.
On October 30, 1888, the -decree was made by the DistrictJudge practically in the terms of the application, and the propertywas sold by the applicants to the Archbishop of Colombo, thepredecessor in title of the respondent to this appeal. At Hhe timeof the application and decree Isabel Mirando had five infant children,but tney were not separately represented in the proceedings in theDistrict Court, the Judge saying in his order “ the heirs are childrenwhose interests are best looked after by their parents, the applicants.I think it proper and consistent, with a due regard to their interests,to authorize the sale."
Isabel Mirando died in 1901, and the appellant, one ,pf her fivechildren, who attained majority, it is said, " about the year 1910/’commenced this action in July, 1915, claiming |a declaration of titleto a one-fifth share of the land, and for damages and mespe profits,on the footing that the deed of gift of 1869 created a fidei commissumin favour of the descendants of Isabel Mirando, and; that the saleby her husband in 1888 under the authority of the District Courtwas invalid as against the children.
The District Judge has dismissed the action with costs,I and fromhis decision the present appeal is brought.
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In my opinion the deed of 1869 created a valid fidei commissumin favour of the descendants of Isabel Mirando. In consideringwhether a fidei commissum is created, one has to look at the documentas a whole, and if the intention to create a fidei commissum is clear,
' effect should be given to it, even although the donor or testator mayhave used in the document expressions that are inconsistent witha fidei commissum. See Wijetunga v. Wijetunga.1
In the present case the restraint against alienation, coupled withthe provision that it shall continue “ from generation to generation ”,the provision that the holding shall be ” subject to all Governmentimpositions under the bond of fidei commissum ”, and the provisionthat the properly shall go to the ohurch “ at the event that thereshall be no heir of the said Isabel Mirando to inherit the saidpremises ”, all seem to me to clearly point to the intention of thedonor to benefit the descendants of Isabel Mirando and to createa fidei commissum in their favour.
The use of the words ” executors, administrators, and assigns ”in the habendum will not, of itself, prevent a fidei commissum beingestablished, if the intention of the donor to create One otherwisesufficiently appears on the instrument. See Goudert v. Don Elias.9
The case of Silva v. Silva,9 cited contra to this proposition, is noauthority for the contention, as not only was the gift in that case to” heirs, executors, administrators, and assigns ”, but there was ncsufficient' designation of the person ultimately to be benefited, and itwas on the latter ground that the case, was decided. 1 agree with theopinion expressed by Pereira J. in Wijetunga v. Wijetunga (supra), thatif the intention of a donor or testator to create a fidei cc-mmissum isclear, as it appears to me to be in the present case, and the words usedby the donor or testator can be given an interpretation that supportsthat intention, one should not embark on a voyage of discoveryin search of a possible interpretation that defeats that intention.
The next question that arises is, what is the effect of the sale byIsabel Mirando and her husband authorized by the District Courtin 1888 ?
That there were irregularities in obtaining the order, and that thedecree was erroneous and in part unauthorized by the Ordinanceunder which it was made, I feel no doubt. A guardian ad litemshould have been appointed to represent the infant children, whoseinterests were clearly adverse to their parents, the applicants, andthe declaration that the prohibition against alienation contained inthe deed of gift was void and inoperative was wrong, and was notauthorized by the Ordinance, -which is for the purpose of enablingtiie Court to authorize sales and other alienations when an entailexists; The order for sale, however, is authorized by the Ordinance,and, that order having been made, it is, in my opinion, in the nature1 (1912) 15 N. L. R. 423.* (1914) 17 N. L. R. 129.
s (1914) 18 N. L. R. 174.
1916.
Shaw J.
Mirando v.Goudert
1916.
Shaw J.
Miranda «.Coudert
( 96 )
of a judgment m rent, and. valid as against all the world until it isset aside. The distinction between orders of this nature which arehiding on the whole world and those that are binding on the partiesonly is well defined by Mr. Justice TJlackbum, delivering the opinionof the Judges of the Queen's Bench in Oaetriquo v. Imrie,1 wherehe says:—“ We think, that some points cure dear. When a tribunal,no matter whether in England or a foreign country, has to determinebetween two parties, and between them only, the decision of thattribunal, though in general binding between the parties and privies,does not affect the rights of third parties, and if in execution of thejudgment of such a tribunal process issues against the property ofone _of the litigants, and some particular thing is sold as being hisproperty, there is nothing to prevent any third person setting uphis claim to that thing, for the tribunal neither has jurisdiction todetermine, nor did determine, anything more than that the litigant’sproperty should be sold, and did not do more titan sell the litigant’s
interest, if any, in the thing But when the tribunal has
jurisdiction to determine, not merely on the rights of the parties, biitalso on the disposition of the thing, and does in the exercise- of thatjurisdiction direct that the thing, and not merely the interests of anyparticular party to it, be sold or transferred, the case is very different."
And at page 429, where he says:—"We apprehend the trueprindple to be that indicated in the last few words quoted fromStory (Conflict of Laws, section 592.) We think the inquiry is, firstwhether the subject-matter was so situated as to be within the lawfulcontrol of the State under the authority of which the Court sits; andsecondly, whether the Sovereign authority of that State has conferredon the Court jurisdiction to decide as to the disposition of the ‘thing,and the Court has acted within its jurisdiction. If these conditionsare fulfilled, the adjudication is conclusive against all the world."
In the present case the District Court had jurisdiction under theEntail and Settlement Ordinance to dirept the sale of the property,and not merely the interest of Isabel Mirando in it, and baying doneso, that sale is . conclusive against the plaintiff and every one elseuntil the decree is set aside.
It was contended that what judgments amount- to judgments inrem in this Colony is set out in.section 41 of the Evidence Ordinance,1895. The provision contained in that section, however, is aprovision of procedure as to evidence merely, and not substantivelaw, and proof of the existence of tile order of the District Court isadmissible under section 40.
I need not go into the question whether the plaintiff on takingproper steps could or could not get the decree of the District Courtset aside, but so long as it stands the title to the property in disputeappears to me to be in the defendant.
I would dismiss the appeal, with coats.
Appeal dismissed.
1 L. R. 4 H. L. 414 at page 427.