126-NLR-NLR-V-19-NAGAHAWATTE–v.-GUNASEKERA-et-al.pdf
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1817.Present : Wood Benton C.J. and De Sampayo J.
NAGAHAWATTE v. GUNASEKERA et al.
e206—D. C. Matara, 7,440.
Mortgage of ttoo lands—One .land purchased by third party under anunsecured creditor's writ—Right of purchaser to ask for cession ofmortgage on tendering sum due on bond.
Where two lands were mortgaged, and one of the lands wassubsequently purchasedby a third party under an unsecured
creditor’s-writ,—
Held, that the purchaser was entitled to an assignment of themortgage bond on his tendering the entire sum due on the bondto the mortgagee.
fJlHE facts are set out in the judgment.
Bawa, K.C., for plaintiff, appellant.
Zoysa, for defendant, respondent.
Cut. adv. vult.
August 3, 1917. De Sampayo J.—
This appeal raises a point of law on the following state of facts.One Francis Abeyewardene was the owner of two lands calledEttarawa and Walaskaduwewila, which he mortgaged to thedefendants by bond dated June 22, 1915, to secure a sum of Bs. 2,000.Under an unsecured creditor’s writ the land Ettarawa was sold bythe Fiscal and purchased by the plaintiff, who obtained thereforthe Fiscal’s transfer dated July 16, 1916. The plaintiff broughtthe sum of Bs. 2,000 into Court, and prayed that the defendant beordered to accept this sum in satisfaction of his claim, and toexecute an assignment of the bond in favour of the plaintiff, and inthe alternative that the lands be valued and the defendants beordered to accept a proportionate sum in respect of Ettarawa and*release the same from the mortgage. The defendants did not agreeto this alternative proposal, and were willing to receive the fullamount of the debt but denied the right of the plaintiff to askfor an assignment of the bond. The District Judge decided this
1 (1844) 6 Q. B. 443.
J.
Nagaho-uxtUe v.Gunaaekera
C 500 )
question of law in favour of the defendants, and entered /judgment 1®1T.
•ordering the defendants to draw the sum deposited and declaring ^ bsmpavo
the bond discharged.
The relief which the plaintiff claimed appears to be fair andequitable, and unless there is some distinct law to the contrary, itshould, I think, be granted. Voet SO, 4, 5 discusses the case of amortgage of several things, and the right to cession of a third partywho has subsequently acquired one of them. He .'says that somejurists are of opinion that this right should be allowed only to “ justpossessors ” and not to '* unjust possessors,” but he adds that thebetter opinion is that generally cession of action against the principaldebtor and the possessors of the other pledges should be made toany possessor' who, when sued by the hypothecary action, offersthe whole debt. Voet then expresses his own opinion thus:
“ Certainly if rights of action are, on the most certain principles oflaw, to be ceded to guarantors of another’s debt and also to sureties,when these are willing to pay the debt in full, against the otherpersons who at the same time became co-sureties or guarantors, Isee no reason why cession of action. ought not to be also made toany person whatever who pays the whole debt, and thus also theright of action should be ceded to a purchaser by him whom hepays.” (Berwick’8 Trans. 383.)
Of course, the law would not recognize any such right in a stranger.
The plaintiff in this case is not a stranger but a purchaser, and a“ just ” one, and comes within the class of persons in whom eventhe qualification which some Roman-Dutch jurists appear to intro-duce exists. In Sanmugam Chetty v. Khan1. Mr. Justice Wendtthought the reason in Voet showed that the condition of beingused by the mortgage-creditor was essential to the right of a possessorto pay and claim cession, and he disallowed the relief claimed inthe case of a possessor who had purchased pending the mortgageaction, and who, therefore, was bound by the mortgage decreewithout being sued himself on the mortgage. Taking this as thecorrect reading of the passage in Voet, I think the plaintiff is entitledto the benefit of cession on paying the whole debt, inasmuch as thedefendants have not yet sued on the mortgage in their favour, andwould have to bring a hypothecary action against the plaintiff,if they wish to realize the land Ettarawa which the plaintiff hasacquired by purchase in execution against the debtor. I think,therefore, that this appeal is entitled to succeed on the point raised.
I would modify the judgment of the District Court by deletingthe order as to discharge of the bond, and by including in the decreean order that the defendants do execute an assignment of the bondin favour of the plaintiff. The defendants should also pay thecosts of the action and of the appeal.
Wood Benton C.J.—I agree
Appeal allowed.
» (1906) 3 A. C. B. 10.