Present: De Sampayo J.
PETERSON v. FERNANDO.125—0. B. Colombo, 48,607.
Improvement of house by one co-owner—Bona fide belief that he was soleowner—Jus retentionis—Partition action—Compensation.
Where a co-owner improves a house in his possession, under themistaken impression that he is sole owner, he has no- right of actionagainst his co-owners, his only remedy being by way of retentionof the property in his capacity as bona fide possessor, until aproportionate share of the expenditure has been refunded to him.
In the event of a partition action, the improving co-owner willhave compensation allowed him in the scheme of partition.
rjlHE facts are set out in the judgment.
Bartholomeusz, for plaintiff, appellant.
A. St. V. Jayewardene, for defendant, respondent.
Cut. adv. vult. '
May 30, 1916. De Sampayo J.—
The point for consideration on this appeal is whether theCommissioner is right in holding that the defendant is entitled to■compensation for improvements and to jus retentionis pending pay-ment thereof. The facts were not disputed, and the only question isone of law. The plaintiff has been found to be entitled to one-.twelfthshare of a certain house, the entirety of which has been possessedby the defendant on the footing of sole ownership. The defendantconsiderably improved and practically rebuilt the house, and theCommissioner finds that the plaintiff’s vendors were well aware*. of the defendant’s possession and acts of improvement. If theplaintiff was the owner of the entirety of the premises, there is noquestion that the defendant would have been entitled to the wholeof the improvements and to jus retentionis in respect of it. RutMr. Bartholomeusz, for the plaintiff, contends that the defendant,being only a co-owner, is not entitled to the latter remedy in respect ofthe plaintiff’s share of the house, and cites Silva v. Silva1 in supportof his contention. When that decision is examined, however, it willbe found that it was a case oT undisputed co-ownership, and theprinciple underlying the decision appears to be that a co-owner insuch circumstances is not in the position of a bona fide possessor,who alone is entitled to jus retentionis in respect of improvements.In a case where co-ownership is not only admitted, but the party
1 1911) 15 N. L. R. 79.
C 160 )
in possession in good faith claims to have been entitled to theentirety, I cannot see on what. principle he can be said not to be abona fide possessor of the share which the other party is found to beentitled in the ultimate contest for title. Mr. A. St. V. Jayewardene,for the defendant, has submitted authorities which are in point.Voet 10, 3, 3 (Samson’s Translation 389), after dealing with thecase of a person who knows that there is another co-owner withhim, proceeds to say that the position is different if he spent themoney on improvements thinking that the property was his alone,and that, though he has no direct actipn to recover the amount ofcompensation, he has the right " to retain the property as if hewere the bona fide possessor of another’s property until the other’spro rata share of the expense is made good to him.” Maasdorp’sInstitutes, vol. II., p. 133, shows that this passage of Voet is goodeven at the present day, for he there says: ” Where a person has-incurred expense with respect to property in his possession, under themistaken impression that it is his sole property. Voet lays down thathe will have no right of action against his co-proprietors, his onlyremedy being by way of retention of the property in his capacity asbona fide possessor, until a proportionate, share of the expen-diture has been refunded to him.” It thus appears not onlythat he has the jus retentionis, but that it is his only remedy, except,of course, in the event of a partition action, in which case underour Ordinance the improving, co-owner may have compensationallowed him in the scheme of partition.
I think the Commissioner's judgment is right. The appeal isdismissed, with costs.
PETERSON v. FERNANDO