090-NLR-NLR-V-28-PEIRIS-et-al.-v.-SINNAMUTHU-et-al.pdf
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Present: Dalton J.
PEIRIS et al. a. SINtfAMUTHU et al.
224—C. B. Ratnapum, 18,929.
Landlord and Tenant—Licn^-Landlord's . claim in respect of rent—Seizure and sale—Goods in possession of tenant—Prior attachment.Whore a landlord who claimed a lien over goods in tho possessionof his tenant in respect of rent had made his lien effective byseizure of the goocte, followed by sale.
Held, that the lien cannot be defeated by a prior attachment inexecution of a mortgage decree.
A
PPEAL from an order of the Commissioner of Bequests, Ratna-pura. The facts appear from the Judgment.
Soertse (with him Schokman), for plaintiffs, appellant.
if. 7. Perera (with him Rajakariar), for defendants, .respondent;
March 12, 1926. Dalton J.—
This appeal raises a question as to the nature of a landlord’shypothec with regard to property brought on his tenant’s premises.The facts are as follows:—
The first plaintiff is the owner of a botique at No. 216, Mainstreet, Ratnapura, which he rented to the first defendant on June 1,1924, as a monthly tenant at the rate of Rs. 45 a month, the secondplaintiff being in charge of the premises on behalf of the first plaintiff.On December 3, 1924, plaintiff filed his claim, to recover rent thendue, and on February 12, 1925, got judgment for the sum of Rs. 185.Writ was issued on February 12, 1925, property of the first defendantin the boutique was seized the next day, and on February 20 wassold by the fiscal on the premises where they had been seized. OnMarch 3 fee reported the sale to the Court and also reported thatthe property had been seized under writs issued in two other oasesC. R. 17,748 and 18,518. The plaintiff thereupon moved for noticeupon the judgment creditor in those two cases to show cause whythe proceeds of the sale should not be paid out to him (plaintiff) onthe ground that his claim was preferent. Case 17,748 was one of aclaitn against the present first defendant on a mortgage bond, uponwhich proceedings were taken by the judgment creditor (who hasbeen'called the second defendant in these present proceedings) onTune 30, 1922, judgment being given thereon on August 15, 1922.Writ wafc issued on May 24, 1923, and the property mortgaged was‘seized on October 10, 1924, and February 19, 1925. The propertymortgaged was furniture, and it is admitted it had been removed
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1926.
l>AIlTON J.
Peiris v.tiinnamnthn
from premises which has been rented by the second defendant to thefirst defendant, to the premises rented by the first defendant from theplaintiff. Case C. R. 18,518 was a claim by the second defendantagainst the first defendant for rent in respect of premises he had hiredfrom the second defendant. This claini for rent was filed on March20, 1924, and judgment obtained on June 5, 1924. Writ issued onJuly 15, and the furniture seized on October 10, 1924, and February15, 1925. On November 26, 1924, an order was made at theinstance of the second defendant staying the sale.
It is admitted that throughout these proceedings, after the-removal of the furniture by first defendant to the premises he rentedfrom the plaintiff, the furniture remained on those premises and wasnever moved until after the Fiscal’s sale.
For the second defendant it was urged that both his writs andseizures were prior to that of plaintiff, and it also appeal's to havebeen^ argued that a conventional mortgage takes preference of thelandlord’s tacit hypothec. The District Judge decided against theplaintiff’s preferential claim; in arguing the appeal for the re-spondent Mr. Perera has not been able to rely upon the groundsgiven for that decision. He argued, however, that the landlord’slien was merely a jus retentionis, After the fiscal had seized onOctober 10, the landlord’s lien, he submits, came .-to an end andthe landlord became merely the agent of the fiscal, and custodianof the property for him. He referred to Wille’s Landlord and Tenantin South Africa, pp. 358-359 as an authority for his contention thatif there is an attachment by a third party before the landlord’s lienwas perfected by seizure, then the lien came to an end.
With respect to second defendant’s mortgage he argued that therewas a decree in existence in respect of the mortgage, before plaintiffs’lien came into existence. It must be noted however that seconddefendant in addition to allowing the goods to be moved from hispremises leased to the first defendant appears to have taken nosteps to enforce that decree, and cannot deny that the mortgaged fur-niture was removed from his (second defendant’s) premises to thoseof plaintiff. The argument is that as the lien arose subsequentlyto the mortgage which was registered, and after the latter had beenconverted into a decree, the lien cannot gain priority.
With respect to the law on the sjubject it has been argued that thelandlord's lien is merely a jus retentionis. It may, 1 think, generallybe taken that the term jus retentionis is similar to the English lawterm "lien,” but as pointed out by Pereira J. in Marikar v. Mcthamed1,the tacit hypothec that a landlord has under the Roman-Dutch lawover invecta et illata upon the premises rented is something morethan a mere jus retentionis, although in some cases a jus retentionis*attaches to it. " Whether in any particular case the lien shapes
117 N. L. R. 191.
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itself as a hypothec or a jus retentionis would appear to depend on l928-the circumstances of possession. At all events the jus retentionis dajitoit J.■onlv exists where there is possession; and where there is no posses- . ,
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sion (os in the case of a person who merely repairs an existing house) $innamuthuit is hypothec or nothing ” (per Bristoive J. in United BuildingSociety v. Smoohlers Trustees J).
Possession by the landlord is not denied, but it is urged that sosoon as the seizure was made by the Fiscal, although the property-remain on the premises, the landlord’s possession disappeared. I amquite unable to agree. All the authorities go to show that it is removalthat defeats the landlord’s lien. It is true that the hypothec, inorder to be made effective, must be confirmed by judicial process,but here we have both judicial seizure by the landlord and continuedpossession by the landlord of the property upon the leased premisesuntil after the sale. In Alexander v. Burger 2 a judgment-creditorseized certain goods belonging to a debtor over which the landlordof the latter had a lien. The officer seizing the goods removed themfrom the leased premises. Innes C.J. says ‘‘ It is clear if the goodshad remained on the premises Alexander (the landlord) would havehad a lien on them; but it is equally clear that the landlord’s lienonly lasts, as a general rule, while the goods are on the leasedpremises.” It was also decided in In re Stilwell3 that the lien overthe property is in force as long as it remains on the leased premisesand gives the landlord a preference over such property which cannotbe defeated by any attachment in the execution of sentences. Ifhowever the removal of the invecta et illata has been completed beforesequestration, the landlord has no longer any right of mortgage orpreference over the goods removed (Voet XX., tit. 11, s. 3).
In this case on the facts it seems to me there was a tacit hypothecwith a jus retentionis, which was made effective by seizure in properform. That seizure was followed by judicial sale under the circum-stances set out. The claim of the plaintiff (appellant) is thereforea preferent one. Landlords have a hypothec with preference—
In the invecta et illata when they have taken care to sequesterthese, and generally to be brief (so have) all who have by-law of usage an hypothec or a right of retention in particularthings.. All these therefore will severally have
preference in the res singulares bound to them by' law orusage or of which they have the right of retention untilreimbursement of expenditure on them, before othercreditors whether hypothecarii or chirograpliarii, howeverprotected by an anterior express conventional or by a legalhypothec whether general or special ’ ’ '(with a few excep-tions mentioned). (Voet XX., tit. 4, s. 19.) –
» (1906) T. S. at 627.2 (1903) T. S. 80.
3 1 Menzies 537.
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The plaintiff is therefore entitled to preference as against theDjjpon J. second defendant. Tie learned Judge's derision in dismissing ther– motion was therefore wrong. His order must be set aside* and the■gjimomtiSti plaintiff's application for the payment of the proceeds of the amountof the' sale to him is allowed, with costs of that application, and thecosts of this appeal.
Appeal allowed.