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Present : Pereira J. and Ennis J.
SILVA v. FERNANDO.
226—D. C. Negombo, 9,102.
Hypothecary action against purchaser at Fiscal’s sale before he gets aFiscal's conoeyance.
A hypothecary action can be brought against a person who haspurchased the property mortgaged at a Fiscal’s sale held inexecution of a writ against the mortgagor, but who has not yetobtained the usual Fiscal’s conveyance in his favour.
fjp HE facts appear from the judgment.
H. A. Jayewardene, for plaintiff, appellant.
E. W. Jayewardene, for second defendant, respondent.
. Cur. adv. vult.
August 27, 1913. Pereira J.— –
In thi6 case the simple question is whether an. hypothecary actioncan be brought against a person who has purchased the propertymortgaged at a Fiscal’s sale held in execution of a writ against the
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mortgagor, but who has not yet obtained the usual Fiscal's convey-ance in his favour. An actio hypothecaria (also called actio quasi8erviana) under the Boman-Dutch law is no more than an actionwhereby a creditor follows up a pledge or hypothec bound to himexpressly or by implication of law when satisfaction is not made tohim by the debtor or any other party interested in the propertypledged or mortgaged. Voet in 20, 4, 2 mentions certain personsagainst whom the action may be brought, but' the list is by no meansexhaustive. The object of the action is to bind by an order for thesale of the property for the satisfaction of the amount advanced to *the debtor all those who have or claim to have an interest in theproperty acquired through the debtor. Of course, a person havingor claiming to have no such interest may not be sued in such an action,but the question of interest is not to be too narrowly scrutinized,because the defendant is in no way prejudiced by the action so longas no costs are claimed against him, except in the event of anunreasonable contest by him of the plaintiff’s claim.
In the present case, although the second defendant cannot besaid to have title to the property mortgaged by the first, the provi-sions of our Code of Civil Procedure vest him with such an interestin the property as to give the mortgagee a right to require him toshow cause, if any, why the property should not be declared boundand executable for the recovery of the debt due to him by themortgagor. The property has been sold by the Fiscal to the seconddefendant; the sale has been duly confirmed by the Court; and thesecond defendant may at any moment, by applying and obtainingthe usual Fiscal’s conveyance, make himself the owner of the propertyas from the date of the actual sale to him by the Fiscal. To say theleast, it is, in such a case, in the highest degree expedient to allowthe mortgagee to have the second defendant’s objections, if any,to his prayer adjudicated upon at the earliest opportunity.
I would set aside the judgment appealed from with costs andremit the case for further proceedings.
Ennis J.—I agree.
SILVA v. FERANANDO