Cur. adv. vult.
2 u
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June 28 »ndJuly 19.
of the said land, being all the interest of the said Johanis Pieriitherein, and has claimed in reconvention that, in terms of section32 of Ordinance No. 5 of 1877, he should be declared the lawfulowner of the share as against the plaintiff. It appears that Missowas appointed administrator on the 2nd January, 1891, and thecertificate dated the 10th March, 1892, states that the plaintiff wasregistered as owner on the 5th October, 1891.
The Acting District Judge gave judgment for the plaintiff forpossession only, and the defendant has appealed.
The question is, what is the effect of registration ?
The 31st section of the Ordinance provides that “every certificate“ of ownership shall have the effect of absolutely barring all claims“ to the land therein mentioned, or to any right or interest thereto“ or therein which shall have arisen or accrued prior to the date of >“ such certificate, and which might have been registered under the“provisions of this Ordinance, but which at the date of such“certificate had not been so registered, save and except as is“excepted by the following section.” The following section pro-vides that persons having or claiming to have any right, title, orinterest in or to any land against the holder of a certificate of thesecond class shall be entitled to prosecute their claim by actionwithin four years of the date of the certificate, and that, if suchaction be decided against the holder of the certificate and infavour of any party, that party shall be entitled to have acertificate, but that no such action shall prevent any claims beingbarred, unless written notice of such action shall be previouslygiven to the registrar.
Section 35 provides that the holder of a certificate of the secondclass, if within four years from its date the registrar has receivedno notice of action, shall be entitled to a certificate of the first class.
In this case the defendant had got into possession of the land,and the plaintiff seeks to eject him on proof of his own title.
It was argued on behalf of the defendant that section 31 onlybarred claims of persons out of possession, and did not apply to acase like the present, where the claimant had managed to get intopossession ; but this, in my opinion, is not a fair reading of thesection. Having regard to the inquiries which have to be made,and the notices which have to be given before the certificates oftitle are granted, and to the fact that the Ordinance contemplatesa sort of judicial settlement of all claims within the district inwhich it is brought into force, I am of opinion that the intentionwas to make the certificate, unless and until it was impeached byan action brought under section 32, conclusive evidence of thetitle of the holder, and to prevent any claim being asserted in any
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way to the land which arose or accrued prior to the date of thecertificate, and which might have been registered. The defendantclaims by the conveyance from the administrator, Misso, of the6th June, 1892. Then the question arises,—had Misso, at the dateof the certificate, such a right or interest in the land as might havebeen registered under the Ordinance ?
The right of aD administrator in respect of land has been muchdiscussed.
It was suggested in a recent case that his position with regardto land differs altogether from that of an English administratorwith regard to his intestate’s chattels real, and that he has only alimited estate in them—an estate sufficient for administration andlimited thereto; and it was said that, subject to the exercise offeat power, the land devolves on the heirs direct, not as in Englandthrough the medium of the administrator (Cassini v. Marilcar,1 8. C. R. 185). For my own part, I cannot understand thenature of such a limited estate.- I know of nothing like it inEnglish law.
But whether that view be correct or incorrect, it can hardly bemaintained since Ordinance No. 8 of 1863, that an administrator hasnot such an interest in his intestate's lands as is capable ofregistration.
Section 38 of that Ordinance requires every grant of adminis-tration effecting any land to be registered.
More recently Ordinance No. 14 of 1891, section 16, speciallyrequires every grant of administration affecting any land to beregistered in the books kept under Ordinance No. 5 of 1877, andsection 26 of the same Ordinance provides that “ on the death of a“ registered owner, all lands belonging to him shall remain in his“ name until probate or administration of his estate shall have been“ granted, whereupon, and upon a written application on that
behalf, the name of the executor or administrator shall be“ registered in the books until a partition, transfer, or alienation of“ the land shall have been effected, whereupon such partition“ transfer, or alienation shall be registered.”
These provisions do not appear to have been brought to thenotice of the learned Judges who decided Cassim v. Marikar.
It was the duty, therefore, of the administrator to get himselfplaced on the register in the stead of his intestate.
As he did not do this, his claim was barred under section 31 bythe plaintiff's certificate of ownership, and the defendant whoclaims through him can be in no better position.
But the defendant has claimed in reconvention the benefit ofsection 32 of the Ordinance No. 5 of 1877. It was suggested in
June 28 andJuly 18.
Bonskb, O.J.
Jvm 28 andJuly 19.
argument that the certificate could only be set aside in anindependent action, but I am of opinion that this is not so, and thatit is competent for a defendant to do as this defendant has done.Bat before the action or claim in reconvention can be of any avail,notice must be given to the registrar. The word “previously”cannot mean “ previously to action brought,” for in section 35 thenotice is referred to as being “ notice of an action having been“ commenced.” The words “ unless written notice of such actionshall have been previously given to the registrar ” mean “ unless and“ until written notice of such action shall have been given to the“ registrar.”
If the registrar has no notice of any action to set aside thesecond class certificate before four years have elapsed, he willproceed to give the holder a first class certificate. In mft-opinion, therefore, it not having been proved that notice of thisclaim in reconvention had been given to the registrar before thedate of trial, the plaintiff was entitled to a decree in his favour.
Under all the circumstances, however, I think that the properorder to make in this appeal will be to send the case back to theDistrict Court with directions to try the cross claim. If thedefendant proves a good title and notice of action given to theregistrar, he will be entitled to succeed, but he must pay the costsof the action in any event, and the costs of this appeal.
Browne, A.J.—I agree.