( 13 )
SILVA v. HENDRICK APPU.
D. C., Galle, 2,540.
Action for declaration of title by purchaser at a tide in execution, withoutconveyance from Fiscal—Validity of tuck action—Civil Procedure Code,t. 280—“ Right and title ”—“ Legal estate."
Where a purchaser at an execution sale came into court praying fordeclaration of title, without haring a Fiscal’s conveyance in his favourat the time of the institution of the action, and undertook to procureand produce such conveyance at the trial of the case :—
Held, per Lawrie, A.C.J., and Withers, J. (dittentiente Browne,J.), that the action was not maintainable.
Withers, J.—Under the Code, the right and title of the judgment-debtor to immovable property sold by virtue of an execution writ is notdivested by the sale until the confirmation of the sale by the Court andthe execution by the Fiscal's conveyance.
The expressions “ right and title ” and “ legal estate ” used in section289 are synonymous.
HE facts of the case appear sufficiently in the judgmentsdelivered by their Lordships.
The plaintiff appealed against the dismissal of his action.
Pieris and Jayawardana, for appellants.
Wendt and Blaze, for respondents.
Cur. adv. vult.
19th March, 1895. BROWNE, J.—
One Harmanis, having recovered judgment and issued writagainst his debtors, was declared purchaser of the trees of a landat an execution sale held on 7th June, 1893. Before he obtainedthe Fiscal’s conveyance, he on the next day assigned to plaintiffall his rights in the action and land, and empowered plaintiff toobtain the Fiscal’s conveyance. In further execution of the writplaintiff himself on the 11th July purchased the soil of the land.
Ere thirty days from the time that reports of the Fiscal to theCourt could well have been made and orders confirmatory of salesand conveyances themselves thereafter could have been obtained,and in fact before these preliminaries were completed, the Fiscalon the 13th September seized for resale the same debtor’s interestin the same land, and plaintiff thereupon claimed the land. Hisclaim was rejected on the 21st December, and he instituted thisaction stating these facts in full, and thereby showing his title tothe trees and soil was still imperfect, but expressly undertaking toperfect his titles ere trial and then to produce the Fiscal’s transfersin hiB favour.
( 14 )
Defendant, in answer, objected to the sufficiency of the declara-tion, in that the sale of the trees to plaintiff “ is null and void,“ plaintiff’s vendor not having any title in them to convey, he not“ having taken ont Fiscal’s transfers for the same.’’ And at thetrial a preliminary issue of law was stated apparently by the Court:“ Is the sale of 8th June, 1893, to plaintiff good, in absence ofFiscal’s transfer ? ” Defendant further answered that plaintiff hadnot acquired title to the soil, in that he had not been substitutedplaintiff on the original record, nor obtained the sanction of theCourt to bid, and the Court framed another “ preliminary issue oflaw and fact ” thereon: “ Did plaintiff’s purchase of 11th July,1893, pass title to plaintiff ? ” But defendant did not offer theproofs necessary to sustain such plea, and it is unnecessary toconsider it.
Apparently plaintiff had obtained his transfers ere the trial andwas ready to produce them, but the learned District Judge heldthat, as under section 289 the right and title of the judgment-debtor to property sold is not divested by the sale until the con-firmation of the sale by the Court and execution of the plaintiff’sconveyance, plaintiff had no title to the land when he filed hisplaint, and so had no right to institute his action, which heaccordingly dismissed with costs.
Now, as regards actual title to the land, this Court has, inaccordance with the subsequent provision in section 289 that onsubsequent execution of the Fiscal’s conveyance the grantee isdeemed to be vested with the legal estate from time of sale,frequently upheld as good a title originally imperfect for want ofintermediate Fiscal’s conveyance, but subsequently perfected byits having been obtained (9 S. C. G. 32 and 92, 1 S. C. R. 73,2 G. L. R. 192), and I see no reason whatever why a plaintiff maynot, before so perfecting a title, i.e., when he has, not no titleat all to land, but an imperfect title, capable of being easilyperfected, institute an action to enforce his rights under thattitle against a disputant.
The action 11,092, District Court of Negombo (S. C. M., IS June,18S8), was remitted by this Court with liberty to plaintiff to obtainand produce the Fiscal’s conveyance necessary to complete hertitle, and apparently the plaintiff in 16,716, District Court ofNegombo (9 S. G. C. 92), on being ousted in January, 1889,instituted that action ere he obtained his Fiscal’s conveyance on19th March, 1889. Such an action is of course instituted at therisk of the title being still imperfect at trial, and of its dismissalby reason thereof.
I would set aside the decree, with costs, and remit the actionfor trial.
( 15 )
Withers, J —
I understand, the facts to be briefly as follows.
In the execution of a judgment against one Podi Sinho andone Avis de Silva, the execution-creditor, Harmanis Appu, causedto be seized and sold some thirty-two trees growing in a gardenknown as Maginagewatta, and himself became the purchaser atthe Fiscal’s auction. The sale under the writ took place on7th June, 1893.
Before obtaining a Fiscal’s certificate of transfer the buyerassigned his interest in the said thirty-two trees to the plaintiff.Indeed, his assignment was made on the 8th of June, the verynext day.
Harmanis, the said execution-creditor, on the same day assignedthe. unsatisfied balance of his judgment against the said PodiSinho and the said Avis de Silva to the plaintiff. In thefollowing month, i.e., the 11th July, 1893, the soil of the saidMaginagewatta was Bold in execution of a writ of the saidHarmanis and purchased by the plaintiff.
The plaint is so carelessly drawn up, as not to say in executionagainst whom—Podi Sinho or Avis de Silva—or to whom thetrees first and then the land were judicially sold as described.
I imagine it to be Podi Sinho’s, as the cause of action is theseizure by the defendant on the 13th of September, 1893, of thisvery land in execution of a judgment he had recovered againstthe said Podi 3inho.
The plaintiff confesses that, when he instituted this action, hehad not procured a transfer from the Fiscal either of the saidthirty-two trees of the land Maginagewatta or of the soil of thesaid garden sold under his vendor’s writs.
If the Fiscal had already sold this land in July, 1893, as PodiSinho’s property, how he came to seize it again in Septemberunder a writ against that person I find it difficult to understand,as I do his conduct in selling growing timber one day and thenext the soil on which the timber grows; but fn that districthouses and growing trees are hot regarded apparently as beingattached to the soil.
However, as a matter of fact, the Fiscal did on the 13th Septem-ber, 1893, seize this garden and advertise it for sale at theinstance of the defendant. Nine days after the seizure plaintiffobjected to the Fiscal selling this land. He claimed it as hie,though I cannot find the terms of his claim or of the Fiscal’sreference of it to the Court. He says that after inquiry his claimso referred to the Court was dismissed. Within fourteen days,under the 247th clause of the Code, he comes forward to establish
( 16 )
hie claim ; but what was his claim ? I suppose to the land as hisown absolutely, but I have to guess at this fact. I shall assumethat he did claim the land as one who had purchased it at a salein execution, but had not obtained a Fiscal’s transfer.
It appears that at some stage of the proceedings in this actionthe plaintiff procured from the Fiscal a transfer of the thirty-twotrees and a transfer of the soil which had been judicially sold inJune and July as above stated, but on the 16th of July, 1894, certainpreliminary issues of law and of fact were discussed between theparties to this action, with the result that the District Judgedismissed the action with costs, on the ground that, when theplaintiff instituted the action, he had no cause of action, havingno title in the land which defendant had seized, and the seizureof which was opposed by the plaintiff.
The Acting Chief Justice supports this ruling, but my brotherBrowns would allow the case to be remitted for plaintiff toprove his Fiscal’B transfers to the said land and the said thirty-two trees, relying, as regards this course, on a judgment of thisCourt in appeal from a dismissal of a plaintiff’s action in eject-ment, on the ground that she had no proprietory title in theabsence of a Fiscal’s transfer, when the Court of appeal set asidethe judgment and remitted the case, with liberty to the plaintiff toproduce and prove her Fiscal’s transfers, which in point of factseem not to have been made out for a long time afterwards.This was an unreported case from Negombo in 1882 (Perera v.Julihami). My brother Browns also relied on those judgmentsof this Court which give effect to a Fiscal’s transfer, so as to makeit speak from the date of the sale under the writ.
There were no reasons given for the judgment in the Negombocase of 1882, and as that was before the Civil Procedure Code,I do not think it can help us. We have to consider the 289thsection of the Civil Procedure Code, which enacts, “ the right“ and title of the judgment-debtor, or of any person holding under“ him, or deriving title through him to immovable property sold by“ virtue of an execution, is not divested by the sale until the“confirmation of the sale by the Court and the execution of“ the Fiscal’s conveyance. But if the sale is confirmed by the“ Court and the conveyance is executed in pursuance of the sale,“ the grantee in the conveyance is deemed to have been vested“ with the legal estate from the time of the sale.” What is meantby the words “ legal estate,” which are foreign to the Roman-Dutch law ? This section must be construed in reference tothose which follow it, which limits the mode of user to theperson in possession, be he the execution-debtor or the Fiscal asthe purchaser’s agent.
( 17 )
The right and title of the judgment-debtor to immovableproperty sold by virtue of an execution is not divested by thesale until the confirmation of the sale by the Court and theexecution of the Fiscal’s conveyance.
The “ right and title” is used as synonymous with the “ legal“estate,” a term well known in the English law, which it seems tome must be our guide in interpreting this part of the Code. Wemust go back to the “ statute of uses,” and the judgment-debtormust be regarded as a trustee who has the fee simple in legalestate, while the purchaser in execution must be considered ashaving an equitable interest or estate. The title is in the trusteeof a judgment-debtor, and the right to use the property forlimited purposes is in him or the person in possession.
This right and title, such as it is, belongs to the trustee againstall the world.
The purchaser, when thirty days have elapsed, mnst have thesale confirmed and procure a conveyance from the Fiscal. Havingdone that, the legal and the equitable estates unite, and he canforce the trnstee, i.e., judgment-debtor or other person m pos-session of the immovable property, to surrender the land to himwith an account of the profits.
That “right and title” or “legal estate” is a right of propertywhich can be seized and sold in execution. It can pass by devise.It could be sold by private transfer, and the purchaser could inthe course of time, if he remained in possession without acknow-ledging the purchaser’s equitable title, and using the property ashiB own for ten consecutive years, perhaps regain a prescriptivetitle to the detriment of the purchaser. Two conditions arerequired by the purchaser before he can acquire absolute dominium—he must procure the Court’s confirmation and the Fiscal’s con-veyance. It is admitted that the plaintiff had not done so whenhe instituted this action.
The difficulty that confronts us is the position of the purchaser,who, having made a claim similar to the plaintiff’s, has to establishhis claim within fourteen days of the order upholding the seizureunder the provisions of the 247th section of the Civil ProcedureCode. We have repeatedly held that, unless a claimant who hasbeen defeated fails to come forward within fourteen days andestablish his claim, the adverse order will be for ever conclusiveagainst him.
Mr. Wendt argues here that the order which drives the presentplaintiff to establish his claim will not do him a permanent injury.As soon as he procures the necessary confirmation of sale andFiscal’s conveyances he will be able to get possession of the land
( 18 )
And enjoy it ae the absolute owner. That may or may not be eo.My brother Browne would save him from the possible consequencesof an affirmance of the judgment he appeals from, by allowing himfor his protection to put in evidence the orders of confirmationsand the conveyances which it seems he has acquired in the courseof the cause. I would co-operate with my brother if I thoughtthe law of the procedure admitted it.
But I know of no provision which allows a plaintiff who hasno title (i.e., here a legal estate) when he institutes a suit, andwho gains one in the course of a cause to make use of that acquisi-tion in support of his claim, which is dependent on the particulartitle acquired. In re Tottenham Local Board, 2 Times Reports,410, it was considered doubtful whether matter not in existence atthe date of issue of writ can be introduced by amendment, butthis is not an application for leave to amend.
The only satisfactory reason I can assign for the order in appealin the Negombo case relied on is that, under Ordinance No. 4 of1867, a purchaser, after thirty days from the Fiscal’s sale, who hadfulfilled all hiB conditions of sale, became the absolute owner ofthe land purchased under the contract of purchase and sale, andthat the conveyance from the Fiscal was only evidence of thecontract which it was indulgently permitted him to secure.
No doubt the grantee of the conveyance is vested with thelegal estate from the time of the sale, but not for the purpose ofsaving a plaintiff who makes a claim before a Fiscal and institutesan action to establish that claim, without that which gives him agood cause of action.
The judgment must be affirmed, with costs.
When a plaintiff comes into Court praying for a declaration oftitle, he must possess at that time the title which he asks theCourt to decree to be his. When this plaintiff brought this actionhe had not got a conveyance : he was not entitled to possession, hewas not the owner of the land.
The action must necessarily be dismissed, with costs.
SILVA v. HENDRICK APPU