SOEETSZ J.—Perera and Jayamanne.
1944Present: Soertsz J.PERERA, Appellant, and JAYAMANNE, Respondent.
241.—C. R. Colombo, 88,050.
Mortgage—Movable mortgaged by person notowner—Subsequentacquisition
of ownership—Sale to third pa-pty—Mortgage confirmed.
Where a person who is not the owner of a movable mortgages itand snbsequently acquires ownership, the mortgage is confirmed andprevails against a subsequent sale of the movable by the mortgagor.
^^PPEAL from a judgment of the Commissioner of Requests, Colombo,
L. A. JRajapakse (with him S. R. Wijayatilake), for the defendant,appellant.
E. B. TVikremenayake, for the plaintiff, respondent.
Cur. adv. vult.
May ^ 1944. Soertsz J.—
The relevant facts are these. One Siriwardene entered into a hire-purchase agreement with Hunter & Company in respect of a Raleighbicycle. The defendant, appellant, was his guarantor. After he hadpaid a few instalments, Siriwardene deposited the bicycle with thedefendant, appellant, for him to hold against a sum of Rs. 114.50 due tohim from Siriwardene. Thereafter, Siriwardene, on document P 4,purported to sell the bicycle to the plaintiff, respondent, and the twoof them, as found by the Commissioner, acting in collusion in order torecover possession of the bicycle, resorted to the stratagem of a complaintby the plaintiff to the Police that the bicycle was stolen from the posses-sion of a servant of the plaintiff. The Police went in search of the bicycleand found Marthelis, a relative of the defendant, in possession of it.He was actually riding it. Marthelis and the defendant made statementsto the Police accounting for their possession of the bicycle. The Police,quite rightly, took no steps to prosecute them. The bicycle is now in thecustody of the Court, and the plaintiff has obtained judgment for it to berestored to him and for costs as well.
If this judgment has to stand, it would afford a striking instance ofsuccessful chicanery. But, fortunately, the law will not let it stand.The Commissioner has, apparently, taken the view that Siriwardene, not
SOERTSZ J.—Perera and Jayamanne.
having been the owner of the bicycle at the time he pledged it with the de-fendant—for that in effect was what he did—but having become its fullfledged owner only at the time of the sale to the plaintiff the plaintiff’s titleprevails. But, as was held in the ease of Goonetilleke v. Jayasekera1,under the Eoman-Dutch Law, a person may mortgage property of whichhe is not the owner at the time and when the rights of such a mortgageecome into competition with those of a later mortgagee, who took hismortgage after acquisition of title by the mortgagor, the first mortgageeis preferred “ because the right of pledge was confirmed from the momentof the mortgagor’s acquisition of ownership. ” This doctrine of “ con-valescence ” was laid down by that Bench in regard to both movableand immovable property. In the course of the argument, Counselfor the unsuccessful appellants had conceded that this “ convalescenceor “ relation back ” of subsequent title applied to movables but hecontested its applicability to immovables. This is what Voet says onthis point (20.3.4)—
“ Another person’s property can be mortgaged conditionally on thedebtor becoming owner of it, which condition is tacitly understoodwhen one binds to another a thing not yet his own but due to him;for that such a thing may be mortgaged by him to whom the ownershipis about to come is plain from Big. 20.4.16…. Nor does it
matter whether at the time of the mortgage the creditor knew or wasignorant that the thing was another’s provided that the mortgagorafterwards acquires ownership because when the right of a giverhas been confirmed, the right of the recipient is also confirmed. ”
This view was followed again in Adicappa Chetty v. Negris2.
I set aside the judgment of the Commissioner and direct that thebicycle be returned to the defendant unless he is paid the sum of Us. 114.50within a fortnight of the record being received in the court below. Thedefendant will be entitled to retain it till he is paid that sum. Theplaintiff will pay the defendant costs in both Courts. If the defendantdesires to proceed with his claim in reconvention, let the Commissionerframe the necessary issues and proceed to try these. But the orderI have made on this appeal shall not be delayed by these proceedings.
Appeal allowed. i
i 14 N. L. R. p. 65.
2 20 N. L. R. 476.
PERERA, Appellant, and JAYAMANNE, Respondent