124-NLR-NLR-V-04-PBINS-v.-PIERIS.pdf
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PRINS v. PIERIS.D. 0., Colombo, 12,115.
1901.
February IB.
Creditor and debtor—Death of debtor—Action against his widow as executrixde son tort on deceased's mortgage bond—Sale by Fiscal in execution—Purchase by mortgage-creditor—Acquiescence of widow—Subsequentconveyance by widow to her children—Action rei vindicatio by children'svendee—Validity of Fiscal’s conveyance to creditor.
A debtor having died intestate, leaving him surviving his widow andchildren, his creditor recovered judgment against the Widow as executrixde son tort, and at the sale in execution became the purchaser of theproperty. He entered into possession and greatly improved it.
Several years afterwards, when certain of the minor children of themortgage-debtor arrived at their majority, the widow purported totransfer certain shares of the property to them, and they purported tosell such shares to plaintiff.
In an action ret vindicatio raised by the plaintiff against the heirs ofthe mortgage purchaser, Who were in possession of the property,—
Held, per Bonser, C. J.—That the mortgagee’s action against the widowwas rightly brought against her, whether she be treated as executrixde son tort or as the surviving partner in the community ; that it was toolate in the day to argue that the English Law of executor de son tort wasnot in force in Ceylon ; that it was the duty of the widow to pay thedebts of the community by selling, if necessary, the property of thecommunity; that as the property sold was admitted by the plaintiff tohave been “ duly ” seized by the Fiscal, it must be presumed to have beenin her possession; and as the widow had not disputed the mortgage-creditor’s action against her, but even admitted, in the account renderedby her to the Court as administratrix, that this creditor’s debt had beensatisfied by the sale of the property in question, she must be held tohave acquiesced in the sale, and could not thereafter make a good con-veyance to her children.
A
CTION rei vindicatio in regard to three fourteenth shares of atea estate called Elbedde. The facts of the case, as found
by the additional District Judge, were these: —
In 1872 one Carolis Perera bought this land from the Crown andplanted it with coffee by means of money borrowed from the fatherof the defendants, Mr. Jeronis Pieris. In 1879, when CarolisPerera died, there were six mortgages on the property amountingin the aggregate to Rs. 100,000. He left a widow (who had beenmarried in community) and seven children. While her applicationfor letters of administration was pending in Court, Mr. JeronisPieris put his bonds in suit against the .widow as executrix de sontort, obtained a mortgage decree, had the estate sold- by the Fiscal,and became the purchaser of it for Rs.' 70,000 in February, 1880.He entered into possession and converted the old coffee estateinto a flourishing tea estate. Neither he, nor after his death hissons, the present defendants, were disturbed in possession till the
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1001. present, action was raised on the 31st December, 1808, on the footingFebruary 15. Qf a deed of transfer which the widow purported to make on the10th April, 1896, in favour of her three youngest children ofthree-fourteenths of the estate, and a deed of sale executed on thesame day by the three children in favour of the plaintiff for aconsideration of Rs. 16?.
The question at issue was whether or not Mr. Jeronis Pieris,who held the Fiscal's conveyance, obtained a valid title to thethree fourteenth shares which the children, who were notrepresented in the mortgage suit, purported to sell to the plaintiff.
The Additional District Judge dismissed plaintiff’s case in theseterms: —
“ It being admitted that Rs. 100,000 and interest were dueto Mr. Jeronis Pieris by the community, it follows that bywhatever name the decree in Mr. Pieris’s favour may be described,the whole of the common estate in possession of the widow wasliable thereunder for payment of the debt.
“ It is well settled law that a surviving spouse can sell orencumber property belonging to the community for the purposeof paying off debts of the community, and although the childrenare no parties to such sale or encumbrance they are bound by it.In the present case the sale was not a private sale by the widow,but a forced sale against her by order of Court, and surely apublic sale so held cannot be said to be of less force than aprivate one, which undoubtedly would have been valid.
“ The surviving parent is not only entitled to alienate propertyfor the payment of debts, but is also the person to collect thedebts due to the community. It follows, therefore, that he is alsothe proper person to be sued for a mortgage debt incurred duringthe community.
“ If then this land was sold upon a decree so obtained against thesurvivor, surely the children are hound by it, although they wereno parties to it. The children were only entitled to a moiety of thefree residue after the common debts had been paid, and this landwas sold for the payment of such a debt.
I think the strongest reason for upholding the Fiscal’s sale isthis. The widow obtained letters of administration in due course,and her children acquiesced therein, and must be presumed tohave ratified her acts and omissions. Two months after theFiscal’s sale, namely, in April, 1880, she accounted to the Court inthe administration case that the debt to Mr. Pieris had been paidoff bv the sale of this estate and another unencumbered estate.
“ Till April, 1896, when the plaintiff seems to have got holdof the woman, neither she nor her children ever thought of
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questioning the full validity of the Eiscal’s sale of sixteen yearspreviously. Even if the Fiscal had done what he was not entitled todo, the administratrix has clearly ratified her act by her tacit assentthereto, and this she had the power to do. The children whoacquiesced in the act of the administratrix and took no steps torecover their shares, if they thought they had been illegallydispossessed, must be presumed to have ratified the sale (vide
S.C. judgment in D. C., Batticaloa, No. 1,735, decided 25thOctober, 1898).
“ Both law and equity are against the plaintiff in this case.Before an old transaction like this can be opened up the plaintiffmust first show that the children in whose shoes he now standsdid not get their proper shares out of their father’s estate(5 S. C. C. 70). This he studiously abstains from doing, and heradmissions show conclusively that the debt for which this parti-cular estate was sold was far in excess of its value, so that there wasno free residue left thereout which their children can lay claim to.
“ I hold that the Fiscal’s sale was binding on the plaintiff’s threevendors, and that Mr. Pieris obtained under his conveyance titleto the whole estate, including the children’s interests.
" The plaintiff’s action is dismissed with costs.”
Plaintiff appealed.
Walter Pereira (with him H. A. Jayawardena), for appellant.—The widow was sued as executrix de son tort by Jeronis Pieris.She could not be executrix de son tort because, having beenmarried in community of property, she was entitled to continuein possession. She could not be said to have intermeddled with theestate. The judgment against her binds her personally as regardsthe half share she was entitled to. It does not bind the children.In Obina v. TJsifu (7 S. C. C. ISO), where a widow of a deceasedmortgagee was sued as executrix de son tort, and the plaint prayedfor a mortgage decree against the property hypothecated for themortgage debt, it was held that a mortgage decree could not beobtained except in a suit to which the legal representatives of thedeceased were parties (Oriental Bank v. Boustead, 6 S. C. C. 2;Silva v. Wattvhamy, 3 S. C. R. 164). Jeronis Pieris, as mortgagee,should have taken out letters of administration as a creditor forrealizing his security, if he found the widow was not going totake out letters herself. But the fact was, the widow’s applica-tion for letters was pending in Court when he came in with hisplaint and obtained judgment against her as executrix de son tort.The idea of executor de son jtort is foreign to our law. In theCharter of 1833, section 27, District Courts are empowered tocontrol executors and administrators, but neither in that enactment
1901.
February 15.
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1001.nor in our Buies and Orders is any sanction given to an action
February 16.against an executor de son tori. Plaintiff’s vendors were born in
1868, 1870, and 1873, respectively, and came of age in 1889, 1891,and 1894, and their action was brought on 31st December, 1898,and summons issued 13th January, 1899, so that their claims werenot prescribed, as the claims of the other children of the intestatehave been. The judgment of the District Court in the mortgagesuit against their mother does not prevent them from transferringtheir interest to plaintiff.
Layard (with him Wendt), for defendants, respondent.—If thewidow was not an executrix de son tort, but was in lawful posses-sion of the estate by right of community of property, then themortgage action was rightly brought against her. Plaintiffadmits that the estate in question was duly seized and sold, andthat means that she was in lawful possession. And the widowhas admitted in the administration suit raised at her instancethat the community owed Rs. 100,000 to defendant’s father, andthat defendant was satisfied by the sale of the Elbedde estate.She did not inventorize this property as one belonging to heror the children. The Fiscal’s conveyance to the defendant’sfather shows an order of Court confirming the sale, and the orderwas dated 1881, after the widow had taken out letters of adminis-tration. Plaintiff comes into Court with a conveyance in his favourobtained sixteen years afterwards and wants three-fourteenths ofthe estate free of all liability. It is not shown that the childrenhave not got their shares of the inheritance. A surviving spousecan alienate the common estate for the purpose of paying debts •leviable against the estate (3 S. C. R. 164). If a survivor can doso by a private sale, a judicial sale ordered for payment of anadmitted debt is also good (D. C., Kegalla, No. 1||, decided on 6thAugust, 1896; and D. C., Batticaloa, No. 1,735, decided on 25thOctober, 1898).
Walter Pereira replied.
Bonser, C.J.—
The District Judge began his judgment by characterizing thisas a speculative action. I think he might have used even strongerlanguage. The property claimed by the plaintiff in this action isthree fourteenth shares of an estate in the Central Province, whichshares he values at Bs. 30,000. He also claims Rs. 6,857 by way ofmesne profits. Now, he became entitled to these shares, accordingto his own account, by a conveyance which was executed to himon the 10th April, 1896, by three persons, respectively namedSuaris Perera, Dananothee Perera, and Yanavathee Perera, who
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conveyed these shares to him for the consideration of Rs. 167.It appears that the estate belonged to the father of the conveyingparties, one Carolis Perera, who cultivated it as a coffee estate.He had borrowed large sums of money for the purposes of thatestate from one Jeronis Pieris, amounting in all to Rs. 100,000,and he had given six mortgages to secure the moneys borrowedand interest. Carolis died intestate on 18th August, 1879,without having repaid any of these moneys, leaving a widowand seven children, all of whom were infants.. Shortly afterhis death, Jeronis Pieris commenced an action against the widowon the footing that she had rendered herself executrix de sontort to the deceased intestate’s estate, and was in possession of thisproperty. On the 8th December, 1879, he obtained judgment forthe Rs. 100,000 to be recovered out of the estate and effects of thesaid Carolis Perera. Apparently the widow did not dispute theaction. Then it is admitted by the parties that, by the writ issuedin that action, this estate was duly seized and sold by the Fiscalon the 7th February, 1880. The mortgagee became the purchaserat Rs. 70,000, and was allowed that sum in reduction of his judg-ment. Then, some time in the end of the year 1879—the precisedate does not appear—letters of administration were grantedto the widow to the estate and effects of her deceased husband, andshe filed an account as administratrix, in which she stated thaj; amortgage debt of Rs. 100,000, due to Jeronis Pieris, had beensatisfied by the sale of this estate, the subject of the present action,and another estate. Every one seems to have acquiesced in thissettlement, and the mortgagee converted it into a flourishing teaestate, now said to be of the value of a quarter million rupees.The three persons who conveyed to plaintiff attained their age of21 in 1889, 1891, and 1894, respectively.
In 1896 the plaintiff, who is said to have had some formerconnection with the legal profession, seems to have got hold ofthese parties and to have persuaded them to part with theirsupposed interest in this property for this sum of Rs. 167; andto carry out his scheme, his widow was induced to execute aconveyance on the 10th April, 1896, conveying to these childrenthree fourteenth shares of this estate (as the parties were marriedin community of property, on the death of the father each of theseven children would be entitled to one-fourteenth), and on thesame day and at the same time these three children executeda conveyance of the shares which had just been vested in them tothe plaintiff.
The plaintiff impeaches the title of the defendants, who derivetitle from the original mortgagee, Jeronis Pieris, on the ground
1901.
February 16Bonseb, C.J
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1901.
February 15.Bosses, C.J.
that the decree in. the Fiscal’s sale was not binding on theseinfant children, and reliance was placed on a case Obina v. Usifu(7 S. C. G. 180), where it was held by this Court that in such a case,where the widow of a deceased mortgagor was sued as executrixda son tort, a mortgage decree could not pass, but merely judg-ment against her, binding the estate of the deceased in her hands.But it was admitted in this case that the estate of the deceasedCarolis was in the hands of his widow at the time of the actionbrought. It is also one of the admissions by the plaintiff at thetrial, that the seizure b.y the Fiscal was a “ due ” seizure, and itcould only be a “ due ” seizure if the property was in her hands.
Then, Mr. Walter Pereira argued, as I understand him, thatthe English Law as to an executor de son tort was not in force inthis Island. It seems to me rather late in the day to argue that:there have been numerous cases in which such action have beenrecognized by this Court.
Then he said that in the present case she was not an executrixde son tort, because if she was in possession she was in possessionas representing the community, and therefore in rightful posses-sion. But it seems to me to follow from that that the action wasrightly brought against her. There are eases in which it was heldthat a surviving widow who was married in community may selltlife property of the community to pay the debts of the community.This debt of Rs. 100,000 was undoubtedly a debt of the communityand, under the Roman-Dutch Law, it would have been a rightand duty of the widow to pay that debt and sell this estate, if itwere necessary for that purpose. So it seems to me that, whetherwe look upon her as executrix de son tort or as the survivingpartner in the community, the judgment was equally right.
Browne, A.P.J.—
I agree, and would only add that I consider the onus through-out this action to have lain upon the plaintiff, and not, as wassubmitted by appellant’s counsel, to have rested upon the mortgageepurchaser and his representatives at this date to sustain thattransaction of so many years ago.