( *30 )
Carolis had no right to sell the property or to pay off the mortgagedebt to the administrator of Silva Mudaliyar’s estate ; and that hewas not satisfied that any repairs or improvements had been madeby Celestina or others. The Coart therefore entered judgmentfor plaintiff as prayed with costs.
Defendant appealed.
The case came on for argument on the 4th October, 1895.
Layard, A.-Q. (with him Ramanathan, S.-O.), appeared forappellant: The alleged marriage of Johanna with Don Juanseems to fall under the Ordinance No. 6 of 1847, which by section4 enables Christian ministers to solemnize a marriage “ in any
“ place of worship, either consecrated orlicensed!
“for that purpose,: in writing under the hand of the Governor“ and gazetted as such.” There is no proof that the place wherethe parties were said to have been married was either consecratedor licensed. Don Juan swears that his marriage took place in theRoman Catholic Church at Peliyagoda in Siyane kdrale, but hedoes not know even the name of the priest, nor signed any bookin the church after the marriage, nor got any certificate ofmarriage. The marriage register produced is not signed by theparties or the priest who performed the marriage ceremony, andthe Regulation No. 9 of 1822, section 21, makes the register ofmarriage sole legal proof of marriage. Thus the evidence of thesolemnization of marriage is altogether defective. Even if proofon that point be assumed to be satisfactory, it would not helpthe plaintiff, as he failed to prove that the place where themarriage was solemnized was a place of worship either consecratedor licensed for that purpose under the hand of the Governor and*gazetted as such. English decisions show that proof of onemarriage ceremony, or one religious service held in a place, isinsufficient to raise a presumption that such a place was dulyconsecrated or licensed ; and there is no proof in this case thatany other marriage or religious service was solemnized in whatis called the Roman Catholic Church at Peliyagoda than theceremony between Don Juan and J ohanna. But assuming that theparties were lawfully married, Don Juan did nothing to preventJohanna from alienating the property in 1888 for the purpose ofpaying off the joint debt due by him and her to Silva Mudaliyar.He stood by and permitted her to sell the property, and so ratifiedher act (Orotim, p. 28, Masdorp’s translation). In any case, thedefendant was entitled to retain possession till plaintiff compen-sated him for the necessary and useful expenses laid out on theproperty by his predecessors in title, his vendor having received
Oet. 4 andVon. 16.
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rrom him an enhanced price in consideration of snch expenses.And the mortgage debt paid off should be considered utilis im-pensa (Voet, XVI. 2, 20 / 3 S. C. C. 31). Judgment of Berwick,D.J., in D. C., Colombo, 62,563 (3rd November, 1873).
Oct. 4 andNan. IS.
Boxsn, CJ.
Dornhorst, for plaintiff respondent. [BONSBR, C.J.—We shallnot trouble yon as to the question of Johanna’s marriage with DonJuan, but we should like to hear you on the other points.] Thepassage cited from Grotius does not go far enough to support thecontention that by the husband standing by, when the wife signedthe deed, he ratified it. But there is no evidence that Don Juanknew anything about this deed. Even if he had known of it, SandeI. c. I. clearly says that a woman cannot alienate without theauthority or consent of her husband, and that from his merepresence at the time of alienation such authority or consentcannot be presumed. Her conveyance is therefore bad, and doesnot justify defendant’s possession under her. Hence she has nojus retentionis till the expenses laid out are paid. (Van Leenwen’sGens. For. IV. 38,1; Ramanathan, 1877, pp. 313, 333.) Defendanthas not suffered any damage at all. If he has, he has his remedyagainst his vendor for breach of warranty. There iB no ground forholding that plaintiff and Johanna should be treated as one. Thecase for the plaintiff rests upon the fact that Johanna could notconvey the property by herself. The defendant’s title is thuswithout any foundation whatever.
Layard, in reply, cited Story’s Equity, sections 388 and 389.
Cur. adv. vult.
15th November, 1895. Bonsek, C.J.—
This is an appeal from a decree of the District Court of Colombo.The action was one in which the plaintiff sought to vindicatecertain immovable property of which the defendant is in posses-sion. The facts as found by the District Judge or admitted bythe parties are shortly these. The property originally belongedto a widow named Christina Rodrigo, who acquired it by purchasein 1870. She had an only child, Johanna, married in 1850 to oneDon Juan. In 1S88 Christina died, having previously mortgagedthe property for Rs. 1,100. At this time Johanna was living withone Carolis Silva as his wife, having many years before separatedfrom her husband Don Juan, who was also living with anotherwoman. Shortly after Christina’s death, Johanna and CaroliBSilva, as husband and wife, jointly sold and conveyed the propertyto Celestina Hamine for Rs. 2,400, and the mortgage was paid offoat of the purchase money. In 1891 Johanna died intestate, and
( 232 )
1896. the plaintiff is her eon and heir, and also her legal persomfirePreBenta^ve* On 30th September, 1893, Celestina sold and-L- ! conveyed the property to one Ibrahim Ahamat for Rb. 4,500, whoBonn, OJ. agajn jn December of the same year sold and conveyed it to thedefendant for Rs. 6,000. In 1894 Don Ju'n Bold his undividedshare of the property to which he was entitled as Johanna’shusband to the plaintiff. The plaintiff therefore claims onemoiety through Johanna and the other through Don Juan. Thedefendant by his answer denied that Don Juan and Johannawere ever married, and alleged that the conveyance to CelestinaHamine was therefore valid. In the alternative, if the marriage beproved, he alleged that Don Juan maliciously deserted Johanna andlived apart from her for twenty-five years preceding her death in1891, and that thereby Johanna became lawfully entitled to sell and^convey the property. He further alleged that Celestina Hamine,Ibrahim Ahamat, and himself had effected necessary and usefulimprovements on the property, whereby it had increased in valueto the extent of Rs. 2,000, and asked for a declaration that he wasentitled to retain the property until payment by the plaintiff tohim of Rs. 1,100, the amount of the mortgage, and Rs. 2,000 thevalue of the improvements.
Mr. J. Grenier, the Acting District Judge, gave judgment forthe plaintiff and repelled the defendant’s claim for retention as badin law, even if the amount expended in improvements had beenproved, which he held was not the case. He found that DonJuan and Johanna were lawfully married.
At the hearing of the appeal, the Attorney-General arguedfirst that there was no proof of the marriage between Johannaand Don Juan. My brother Withers has gone so fully into thispart of the case in his judgment that it is sufficient for me to saythat I agree with what he has written. That, notwithstandingthat both parties were living apart in adultery, they consideredthemselves, and were considered by their relations, td be man andwife is shown by the fact that in 1874, on the occasion of themarriage of their daughter Johanna, they executed a notarialagreement, in which they made a settlement on their daughter.
It was then argued that Don Juan by his conduct must be takento have emancipated his wife as it were, and have held her out tothe world as being entitled to deal with any property Bhe mightinherit as though Bhe were a feme sole, and that therefore either theconveyance was valid in law or he was estopped from denyingits validity. This argument does not seem to have been urged inthe Court below, for the District Judge makes no reference to it inhis judgment. No authority was cited to support the proposition
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''that, ■when a husband and wife are living apart by mutual 1896.consent, the wife can validly alienate the property belonging tothe marriage community ; and I am of opinion that it is not law.—“
Had,'however, it been proved that Don Juan knew of the sale by’
hie wife and raised no objection to its completion, I should havebeen prepared to hold that he was estopped from denying itsvalidity. But not only is there no evidence of any such know-ledge on his part, but there is no evidence that he knew that thisproperty had been inherited by his wife. I am therefore ofopinion that this contention cannot be maintained.
There is, however, an objection to the plaintiffs’ claim asregards one moiety of the property, which appears to meto be a good one, although it was not expressly raised bythe defence or urged on the appeal. The plaintiff claimsone moiety as the heir and personal representative of Johanna.Now, Johanna and Don Juan being married in community,the property on Christina’s death devolved on the commu-nity in equal shares, and on Johanna’s death her moietydevolved on the plaintiff. As it would have been inequitable forJohanna to have repudiated her own sale and conveyance, so alsoit is inequitable for her heir and representative to do so. He isbound to make good the act of his auctor, and the defendantmay oppose to the claim the exceptio rei venditce et traditce. Thatthis exceptio is available, as well to this defendant as to theoriginal purchaser, Celestina, is clear from the following passageof Yoet: Vtitur autem hac excepiione in primis quidem emtor,
cui res vendita ac tradita fuit ac prceterea omnes illi,
qui causam ab emtore habent, puta heredes ejus, ipsiqueetiam successores particulares, in quos ab eo res ex lucrativovet oneroso titulo translata fuit; adeo ut emtor secundusautori seu venditori primo earn recte objecerit; licet emtorsecundus adversus autorem primum ob rem sibi evictam agerenequeat, nisi actiones contra eum ab emtore primo cessce sint;legibus scilicet facilius exceptionem atque retentionem quamactionem indulgentibus {XXI. 3, 4). And that it is available notonly against Johanna herself, but also against her successor, theplaintiff, appears from the following passage from the sameauthor : Opponitur hcec exceptio non tantum venditori primo, sedet omnibus illis, qui ab eo causam habentes evincere rem emtoriprimo anmtuntur quales sunt, quibus venditorjam dominus foetuseandem rem rursus titulo sive oneroso sive lucrativo concessit.Sed et heredi venditoris recte opponitur sive defunctus ipse, dumadhuc superstes erat, dominium adeptus sit, et ex defuncti capiteexperiri heres cupiat, sive heres ipse rei per defunctum venditceVOL. I.2 H
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1896.dominus fuerit, ut tcimen posteriore casu non ultra repelli possit
°Nov is* teres rein suam vindicans quam pro qua parte venditori successit— (XXI. 8, 3). For although the case put by Voet is one where theBonn, CJ. deceased had sold property which at the time belonged to theperson who afterwards became his heir, yet the principle that theheir is bound by the act of his auctor and is bound to makeit good, or as Perezius Prolectiones, in Cod. 8, 45, 2, expresses it,cogitur prcestare factum defuncti, to the extent of assets des-cended, even though it be his own property that was sold, will,a fortiori, apply to the case where his only title to the property isderived from the seller. I hold, therefore, that the plaintiff isestopped from claiming that moiety of the property which hederived from his mother.
With regard to the other moiety, the case is different, but^whether or not he would be liable to make good the sale of thismoiety to the extent of the assets descended it is unnecessarynow to decide, for it does not appear that any assets did descend.
With regard to the mortgage, I am of opinion that itshould be treated aB a utilis impensa. The property cameinto the community burdened with the mortgage. It was paidoff out of Celestina Hamine’s purchase money, and that paymentimproved the property just as much as if the money had beenlaid out in material additions to the property. The question thenarises, Has the subsequent purchaser a jus retentionis inrespect of impensce utiles made by his vendor ? Although Ican find no direct authority in the Roman-Dutch writers on thispoint, it would seem to be equitable that should be so, and thepassage which I have cited from Voet (XXI. S, 4) favours thisview, as also does the following : Nec dubium, quin illi, quibusjus retentionis a lege vel consuetudine datum est, id ipsum turn adheredes suos turn ad successores particulares quibus vendiderunt,donarunt, legarunt, aut aliter cesserunt mercedis exigendce sum-tuum ve recuperandorumjus, transmittant (Voet, XVI. 2, 20). Iconsider that where a possessor, who has made improvements on aland believing it to be his own, sells and conveys that land withthe improvements to another, he must be taken to have sold withthe land the right to the improvements, and with them the rightof defending his possession of them by every means which wasavailable to himself, including the^us retentionis; and this appearsto have been the opinion of that eminent jurist Paulus, Dig. X. 8,14. See also Cod. 8,45, 28: Emtori etiam venditoris jura prodessenon ambigitur. Si igitur vobis propter rei proprietatem motafuerit qucestio, tarn propriis, quam venditoris defensionibus utipoterilis. The question as to the amount expended as impensce
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Stiles does not appear to have been sufficiently discussed in the 1890.Court below, owing probably to the view taken by the Acting 4 fi*
District Judge that the defendant was not entitled to any jus
retentionis in respect of them.Bonbxb, O.J
The rules as to these impensce are correctly summarized byJudge Berwick in his judgment in 62,563, District Court, Colombo,as follows : “ The rules sb to the extent to which impensce utiles“ can be recovered from the owner are given in Voet, VI. 1, 36,
“87, and 38, and may be abbreviated as follows : (1) When the“ outlay has exceeded the permanent advantage to the property, the“ owner is only liable to the extent to which the property has really“ been rendered more valuable by them, (2) and not even to that“ amount, if the outlay has been very much greater than the owner
would himself have made ; in which case, it is left for the judge“ to determine on a consideration of all the circumstances and“ persons how much should be recovered. (3) If at the time of“ the suit the improved value of the property caused by the expen-“ diture exceeds the amount so laid out, still only the sum actually“expended can be recovered from the owner. (4) When a“ claim is made for compensation, an account has to be taken of the“ mesne profits received ; and only so much of the expenditure,
“ whether made on the production of the fruits or on the property“ itself, as exceeds the amount of these profits or fructus can be“ allowed, subject, however, to the preceding rules. (5) And in“ taking this account fruits which have been consumed as well as“ those which are still extant must be set off against the clause for“ expenditure. The fruits of the expenditure itself however—
“fructus ex ipsa melioratione per cep ti—are to be excluded from“ the accounting and not to be set off against the claim.”
Unless the parties can agree to a sum—which, if they are welladvised they will do—the case must go back to the District Court■ in order that the amount of impensce utiles made by the defendantand his predecessors in title, Celestlna Hamine and IbrahimAhamat, may be ascertained, in accordance with the foregoing rules,the mortgage being included in the category; and it must beremembered that after the date of the litis contestatio, or filing ofthe answer, the defendant cannot be regarded as a bond Mepossessor of the plaintiff’s moiety; and he must therefore accountfor the profits that he might have received as well as those whichhe actually received.
The order will be that the decree be varied by directing thatthe plaintiff do recover from the defendant one undivided moietyof the immovable property claimed in this action, with adeclaration that the defendant is entitled to retain the same until
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1895. the plaintiff pays to him each sum as may be ascertained to be^°Not 15* ^ue ^or imPensce vtites *n respect of snch moiety. As to the
costs, the plaintiff will retain the decree for the costs of the action,
7ithebs, J. the defendant will have the costs of the appeal. The subse-quent costs will be dealt with by the District Court.
Withers, J.—
The subject-matter of this action is a small piece of houseproperty abutting on Hulftsdorp street, Colombo.
The plaintiff seeks to vindicate this from the defendant, who isin bond fide possession of it and claims to be proprietor.
The plaintiff claims in a three-fold capacity, namely, (1) and (2)as the heir and administrator of the estate of one Johanna aliasJohanna Silva, deceased, and (3) as purchaser from one Don Juan |alias Harmanis Appu, husband of the said Johanna.
According to the plaintiff, this property formed part of thecommon estate of the said Harmanis and Johanna, which thelatter brought into the community about October, 1888, on thedeath of her mother, one Christina Rodrigo, to the estate of whomdying intestate he succeeded as the sole next of bin.
The last mentioned fact is not contested. Johanna’s marriagewith Harmanis is disputed by the defendant, and at the trialthis issue was tried and determined in the plaintiff’s favour.That issue, it seems to me, was well decided.
A primd facie case of a legal marriage by a Christian ministerin a consecrated building between Johanna and Harmanis aboutthe year 1850 is clearly made out by the testimony of Paulis andSilva, who witnessed its solemnization. The governing Ordinanceat that time for marriages solemnized by a minister of theChristian religion was the Ordinance No. 6 of 1847. The 4thsection of that Ordinance came into operation when Her Majesty’sconfirmation of the Ordinance was notified in the GovernmentGazette of December 8,1849.
A marriage duly solemnized as the one in question must betaken to be good and valid in law.
The 4th section referred to required that, immediately after thesolemnization of a marriage according to its provisions, an entrythereof should be made by the officiating minister in a book to bekept for that purpose, in such form and material as the Governor,with the advice of the Executive Council, might prescribe, &c.
I can find nothing in the Ordinance, assuming that the wholeof its provisions had come into operation in the district wherethis marriage was solemnized, which iB very doubtful, providingthat the marriage solemnized by a minister of the Christian
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religion ehonld be nnll and void for want of registration. The 189ft.
6th section of the Ordinance, which nullifies to a certain extent
unregistered marriages, does not apply to marriages solemnized
by a minister of religion under the provisions of the 4th section. WlTH“8’ *■
The attempt to prove later marriages, by Harmanis withanother woman and by Johanna with another man, did notdestroy the primd facie case of a legal marriage between Harmanisand Johanna. If they were contracted they were bigamous, but,in my opinion, the evidence falls short of proving a later marriagecontract by either of these parties.
Then two points were made by the Attorney-General on theassumption of a legal marriage between Harmanis and Johanna.
He argued, in the first place, that the facts disclosed such a publicabandonment of his wife by Harmanis as amounted to acomplete surrender of all control over her peraon and property.
She was virtually emancipated, so to speak, and left free todispose of her person and property as she pleased.
There would be considerable force in this contention if thisview of the case was warranted by the facts, but it is not, in myopinion. Whatever the reason of the spouses for not cohabitingtogether permanently after their marriage, it is in evidence thatthe husband used frequently to visit his wife after her return toColombo, and that as late as 1874 the husband and wife joined inan act of dowry to their daughter Juliana, and that Harmanis,
Johanna, and her mother Christina were present at the marriage ofJuliana that year.
The second point was that Harmanis acquiesced in his wife’sdisposal of the house property, and that therefore he and hisprivy in estate cannot now be heard to say that Johanna had noTight to dispose of the property. That argument would havemuch to recommend it, if there was evidence that Harmanis waspresent and cognizant of the disposition and acquiesced in ittacitly or otherwise. But this has not been proved. Thisdisposes then of the naked title in the premises.
The next contention for the defendant was that he was entitledto retain possession of the premises until he had received compen-sation from the plaintiff for necessary and useful expenseseffected on the premises. He had not incurred this expensehimself, but he had paid for it in the purchase money and hadreceived possession of the premises from his vendor.
Does this jus retinendi pass in the sale from one bond fidepossessor to the other without express mention, or does it requirea special cession P In his chapter De Com. XVI. tit. 2, 20, Yoetseems to say that it does pass in the sale, and the authorities to
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18W. 'which he refers dearly say so. (See Dig. de Com. diaivando,0N".iy tib.X.,tit.8,14,l.)
Withxbb, J There remains the qnestion, Gan the plaintiff, who representshis mother Johanna, recover at all the moiety he derives fromhis mother as her sole next of kin, which she sold for valne toCelestina, and Celestina sold for valne to Ahamat, and Ahamat soldfor valne to the defendant ? These contracts of purchase and salehave been specially pleaded in the answer. Is not that a sufficientanswer to the claim ? If A sells for valne and delivers to me aland which does not at the time belong to him ; if he acquires itafterwards and brings an action to re-vindicate it, I may defeathim by saying, “ But you sold and delivered it to me.” I mayplead “ sale and delivery ” with equal effect against the trueproprietor who, inheriting the land from my vendor, seeks tore-vindicate it, and this plea is available to those to whom I sellfor value and their assigns. (See Dig. de XXI. tit. 8, 8.)
I take the principle on which these pleas rest to be this. Thetitle, whether acquired by the vendor in his lifetime or by theheir on the death of the vendor, relates back to the date of thesale for the benefit of the purchaser for value. Hence, in myopinion, the plaintiff’s action for a moiety of the premises mustbe dismissed.
The representative of Johanna is in no better position thanJohanna as to her moiety, and her action could h&ve been wellmet by the exception of sale and delivery.
In my opinion, the money which went to relieve the propertyof the burden of the mortgage should be included within a neces-sary or useful expenditure. Hence the defendant is entitled toretain possession till the plaintiff, as the assign of Harmanis,has paid or secured the repayment of half the mortgage sum,Rs. 1,100. As Buch assign, plaintiff is further obliged to pay orsecure half of the necessary and useful expenses incurred by thedefendant’s predecessors in possession other than the dischargeof the mortgage. These have not been assessed by the DistrictJudge ; and the case should go back for this purpose. I concurin the order as to costs proposed by the Chief Justice.
I have had the advantage of reading Mr. Acting Justice Browne’sjudgment; and while I quite concur with him in regarding thesale of her moiety of the premises by Johanna as no sale at all, Ionly differ from him in thinking that Johanna could not be heardto say she had not sold it if she had survived her husband andendeavoured to vindicate her moiety from the defendant. If shecould be met by a plea of sale and delivery, it seems to me herlegal representative or heir-at-law can be likewise.
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Bkowne, A.J.—I regret that I am unable to concur with my1896.
Lord the Chief Justice and my brother in limiting the rights of 4
the plaintiff to recover only a moiety of the premises in claim.
In proof of the first issue—the alleged marriage of Juan andJohanna on the 28th October, 1850—there were adduced thecertificate A which asserts (if the translation be correct) that theywere members of the Catholic Church, and that a certain ministersolemnized their marriage “at the said church.” The name ofthe church is not given in the extract: it may have been at thehead of the page or volume of which the extract is a part. Butthe deficiency is supplemented by the oral proof, which not onlyshowed that the place was the Roman Catholic Church of Peliya-goda, but sufficiently proved the ceremony to have been aChristian one. Had it not been a marriage to which the provisionsof Ordinance No. 6 of 1847 was applicable, but (as the learnedAttorney-General contended by the want of the Proclamation,which section 5 thereof required) one the validity of which wasto be determined by the provisions of Regulation No. 9 of 1822,any defect in the legality of it for want of registration requiredby the Regulation was cured by the 3rd section of OrdinanceNo. 13 of 1863, so long as no proof were given of any subsequentlegal marriage of either party with another. Such proof has notbeen offered here of a legal marriage with Carolis, nor has it beencontended that the proviso to that section to protect rights acquiredthrough the invalidity of the first marriage had application here.
I however agree with my brother that the provisions of OrdinanceNo. 6 of 1847 are those by which the rights of the marriageshould be proved or challenged, since its applicability to Christianmarriages was not made contingent upon proclamation of it, butSpeciall y exempted therefrom. And while that Ordinance specifiedwhat should be the best proof of any marriage solemnized by aregistrar, it did not so prescribe in regard to Christian marriages,so that want of proof of registration is not fatal. Even if it were,however, section 3 of Ordinance No. 13 of 1863 would have thesame curative effect.
I therefore agree that the first contention for the appellantcannot be sustained. As to the second and third contentions, Iknow of no authority for the position that the wife ever couldbecome emancipated from the power of her husband, even thoughshe might have left him for his fault or with his will, and furthermight have herself lived in adultery. By divorce alone could shein his lifetime have been so freed from his authority, and all hercontractual acts thereafter can be of no validity against him whenhe survived her, save such as she has entered into with his consent
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1895.and authority, or those when he was prcesens atque sciens, of
Oet- 4which here no proof has been given. I fail, however, to see how
his /ictus consensus by mere presence and knowledge if proved
Baomrc, A.J.B0 supplement her notarial acts as to pass title by her deed.
Before entering into the consideration of the ulterior questions,I would wish to have it remembered—what the judgment ofMr. Berwick, D.J., quoted by my Lord the Chief Justice, indicatesto me should be borne in mind—that the bond fide possessor mayon eviction have his claim for compensation partly against hisevictor and partly against his vendor; and that even thoughplaintiff here is as to a moiety the administrator of a vendor,defendant’s predecessor in title, Johanna, was only one of two suchvendors, and that it might be possible that a Court before whomCelestina’s ultimate action might be tried might feel itselfjustified in giving judgment against Carolis solely and not againsther, so that plaintiff ought not now to be regarded as aught savean evictor.
In the absence of all authority from her husband, I feel itincumbent upon me to hold that the alleged sale and conveyanceby Johanna to Celestina fell under the general rule. Yoet {XXIII.2,42): Ex hujusmodi contractibus neque maritus neque uxor stanteaut soluto matrimonio, conveniri queant sed contractus ipso jurenullus fit. To this rule there were possibly exceptions in twoinstances,—when the contract of the wife was regarded as insuspenso usque ad mortem viri quo tempore mulier jam sui juris
effecta possit ex contractu a se initoquia res pervenerit ad
eum casum a quo incipere potuerat {Sande Dec. Fris. II. 4,2), andwhen both the maritus et uxor locupletiores facti sunt ( Voet, ibid,44) by the result of her transaction. This case is not within eitherexception. The husband survived her and may be even still alive.She never became sui juris to enable the results consequent thereonto follow ; and 1 find no authority that in a case of this kind, on herdeath first occurring, her half of the community or her heir hadthat which till then was ineffective made effective against them.And when her paramour and she pocketed ihe Rs. 1,300, netsurplus of the price Celestina paid after thereout paying theRs. 1,100 mortgage, the husband certainly did not becometocupletior thereby. I do not indeed see that the mere realizationof the net cash value of any of the property of the matrimonialcommunity could be said to make the spouses locupletiores. Evenif it could be so regarded in Borne cases, has the husband here intruth been at all enriched ? When now seven years after hiswife’s alleged sale of the property he seeks to reclaim it, he cando so (as we are now holding) only after repaying the money
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disbursed in discharge of the mortgage and the various impensa 1895.allowable against heirs, or may have to wait patiently for some
years to come till the rents and profits recoup these to the bond
fide possessor. Even though his interest on the former of theseis reduced by 3 per cent., I cannot regard it to be proved that hehas been enriched. I regret therefore that I cannot agree withmy Lord the Chief Justice and my brother in holding either thatthe wife ever cold and delivered this property or so entered intoany legal transaction, and that the exceptions thereof could beallowable to her purchaser and the plaintiff, thereby limited to aright to reclaim only the husband’s half of the property after thedeath of the wife. I consider he should be allowed to vindicatethe entirety on payment of all these charges. My regret is lessenedby the consideration that such a ruling wonld be in maintenanceof the original marital power, and that if the successive purchasersare driven to reclaim their moneys from their respective vendors,
Carolis the paramour and other representatives, and not the plaintiffin his capacity of the wife’s administrator, may be the one whowill have to repay Rs. 2,400.
Defendant limited his further defence beyond title to thisaverment that Celestina Hamine, and thereafter his successorsin title, including himself, had effected necessary and usefulimprovements and repairs [he claims no impensce voluptuarice]on the premises by erecting new buildings and otherwise, andthat thereby the premises have been increased in value to theextent of Rs. 2,000. He filed no accounts particularizing the same,nor stating by whom they were effected, nor showing what rentsand fruits therefrom came to him for which he might possibly beheld liable to account.
The only proof offered on the subject is that Celestina Hamine,as to repairs, renovated the roof, two windows, and a door whenthey were rotten, and as to improvements, built two fresh walls,and pulling down one house built an upstair house in its stead.
These works cost Rs. 2,200, and the rent rose from Rs. 20 toRs. 55 a month. The augmentation of rent would thus haverepaid by this time the principal outlaid. The evidence thusshows that defendant himself expended nothing, and his claim towhat would in effect be an hypothecary decree for retention tillhe had recouped outlay out of rents, rests solely upon the facts ofCelestina’s outlay.
While so far as I can see from Voet (XVIII. VI. 9 and XXI.
II. 17), the right to sue (as in 3 S. C. C. 30) for the value ofimprovements to land would have to be expressly ceded to apurchaser, I agree that the jus retentionis and the defence
VOL. I.2 i
( 242 )
1896. thereof here leaded passes under the authorities cited by my
Oet. 4 and brother without such cession. But the question arises in respectNov. IS.
of what items and their value will this right be allowed ?
’' In his judgment Mr. Berwick; D.J., pointed out as the result
of a comparison of Voet (V. III. 21 and VI. I. 36), how muchless both the correlative rights of retention and liabilities for pastprofits recovered are when property is recovered rei vindicationsfrom a bond fide possession than in the case of the recovery of theinheritance. In the former case, such as here, the possessoraccounting only for fruits not yet consumed has right in account-ing to claim for all impensee necessaries. As to impensee utilesin so far as they rendered the property more valuable, he mayrecover the amount thereof when they do not exceed the amountof the increased value : when they exceed the utilitas or melioratiofound at the date of action he may even recover the excess, unless,in the opinion of the Judge, founded on personal and other con-siderations, the excess is too great or the true owner would nothave incurred them, in which cases, as also in the case of impenseevoluptuarice, he may remove whatever would be of use to himselfas far as he can sine rei detrimento, or else receive payment of asmuch as it may be held the true owner would have spent.
Unless therefore the parties shall agree as my Lord has suggested,the action must be remitted, and the defendant should, in myopinion, file schedules of all works done, distinguishing them intothese three classes, and of all profits received since action brought.Though defendant does not admit any outlay was for luxuriouspurposes, plaintiff might so classify some of it, and the Court wouldhave to classify all the several moneys outlaid, and determinewhich the plaintiff must pay. He then could be given the optionof paying such amount, and in default thereof the Court woulddeclare the respective rights of retention, and (on its expiry) ofremoval of the still useful subjects of the past utiles et volupluariaoutlay which plaintiff does not require, and defendant may removewithout injury to the property. I agree that the Rs. 1,100 andlegal interest should be included among the impensee utiles, andthat the property should be regarded as still ameliorated thereby,so that the jus retentionis shall obtain in respect of it, especiallyin view of the favour in which this Court regarded such payments1 Lor. 128 and 3 Lor. 235.
I would, however, make the relief thus allowed and rightsdeclared applicable to the whole of the plaintiff’s claim and thewhole of the defendant’s outlay in cash that shall be allowed.
I would allow plaintiff’s costs in the lower Court hithertoincurred, and defendant have costs of this appeal.
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In the Matter of HAYMAN THORNHILL, Insolvent.i8«.
D. C., Colombo, 1,822.September 20.
Appeal—Delay in forwarding appeal—Intolveney Ordinance—Civil ProcedureCode, e. 438—Description of insolvent—Debt of petitioning creditor—
Motion for annulment of adjudication of insolvency— Technical objections.
A District Judge has no right to delay the forwarding of a easein doe course to the Supreme Court after the appeal has been perfected.
It is sufficient if a petitioning creditor's debt is proved in accordancewith the form in the schedule to the Insolvency Ordinance.
The Civil Procedure Code does not affect proceedings under theInsolvency Ordinance, and an affidavit proving a debt in insolvencyproceedings need not, therefore, be in accordance with section 438 of theCode, but may follow the form given in the schedule to the Ordinance.
In a petition to have a person declared insolvent it is not sufficient tostate his name only, but his description and address should be given.
One of several partners of a firm having petitioned to have a persondeclared insolvent on the footing of a debt due to the firm, it wasobjected that the petition was irregular, inasmuch as the debt was notdue to the petitioner only, and that he should have produced thepower of attorney authorizing him to sign for the firm :
Held, that the objections were too technical to be given effect to, inthe absence of some injustice suffered on the merits.
One partner of a firm may sign such petition for himself and onbehalf of the others without a power of attorney from the latter.
f j tHE facts of the case are set oat in the following judgment.
Domhorat appeared for the creditor appellant; Baiva, for in*solvent respondent; Chapman, for petitioning creditor.
20th September, 1895. Bonsbb, C.J.—
This is an appeal by a creditor of a person who is described asHayman Thornhill, of Colombo. Whether that person is maleor female, or whether it has any occupation or business, doesnot appear.
The insolvent was adjudicated insolvent on the petition of oneWilliam Jenkins, who gives the vague address, Colombo. Theappellant is a creditor, and he objected to the adjudication andmoved that it be annulled. That application was refused, and hehas appealed to this Court. The appeal was perfected on the 22ndJuly, but the papers were not transmitted to the Supreme Courtuntil the 31st of August, and they were not received here till the3rd of September, whereas they ought to have been sent on orsoon after the 22nd of July.
This detention of the proceedings was quite irregular. TheDistrict Court has no right to take upon itself to delay an appeal.
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1896. That this was done intentionally appears from the fact that it isStgttmber 90. recorded that a motion was made on the 7th of Angnst, 1895, byBosses, OJ. the proctor for the insolvent, that “ the record be not forwarded“to the Supreme Court until after the 15th instant.’1 TheDistrict Judge, instead of dismissing that motion with costs,allowed it to stand over for a few days. I mention this becauseI wish it to be understood that a District Judge has no right todelay appeals.
The objections taken to the jurisdiction were of a highlytechnical nature. The first was, as I understood it, that thepetition was not the petition of the real creditor, but was onlythe petition of one of several joint creditors. The debt was notdue to William Jenkins, but was due to him and his co-partners,who were trading under the firm of Cargill & Co. Strictlyspeaking, the petition ought to have been the petition of thethree persons to whom the debt was due. But that objection is apurely technical one, and I do not think the Court is bound togive effect to it, unless some injustice has been done. It appearson the face of the petition that it was a debt due to the firm.Then it was said that the power of attorney ought to have beenproduced empowering Mr. Jenkins to sign the petition on behalfof his partners. But I do not see that that is necessary, for, inthe form given in the schedule to the Ordinance (form B), thereis a note which sets out “ if the petition be by partners, alter the“form accordingly, and let it be signed by one on behalf of“himself and partners.” Strictly speaking, either all threepartners ought to have signed the petition, or it should have beensigned by the one partner, William Jenkins, on behalf of himselfand his two other partners ; but that iB a pure technicality whichdoes not in any way affect the merits of the case.
Then it was said that there was no proper proof of thepetitioning creditor’s debt, but the proof given was in accordancewith the form in the schedule, and was sufficient. An'otherobjection was, that the affidavit verifying the petition does notstate that it was signed, as well as sworn, before a Justice of thePeace as required by section 438 of the Civil Procedure Code, but wehave held in a recent case that the Civil Procedure Code doesnot affect proceedings under the Insolvent Ordinance, and theform given in the Insolvent Ordinance does not require more thanthat the affidavit should be sworn before a Justice of the PeaceTherefore that objection fails.
I think, therefore, there is no ground for setting aside thisadjudication, and the appeal must be dismissed. At the same timeI should point out that the petition appears to have been drawn
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very carelessly. It is not sufficient merely to describe a person who1696.
is petitioned against as Ram Menika or John Smith of Colombo. SepUmberso.
The description and address of the person should be given so
that creditors and other persons concerned may know that the
person who is to be adjudicated insolvent is their debtor, and the
person with whom they have had dealings, and in whose affaire
they are interested.
The appeal will be dismissed, but there will be no costs.
Withers, J.—I agree.