027-NLR-NLR-V-16-SILVA-v-.-SILVA.pdf
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Present: Lascelles C.J.
SILVA v. SILVA.
450—C. jB. Colombo, 26,729.Purchase under a simple money decree by plaintiff during the pendency ofa mortgage action—Subsequent purchase under the mortgage decree—Action for decfaration of tide by plaintiff against purchaser undermortgage decree—No Fiscal's conveyance in favour of defendant atdate of action.
The added defendant purchased under a mortgage deeree the lifeinterest, 'which is the subject of this action, but did not obtain aPi seal’s transfer till after the institution of this action. During thependency of the mortgage proceedings* the plaintiff purchased thelife interest at a sale in execution under a simple money decree andobtained Fiscal's transfer. In an action by the plaintiff. againstthe added defendant for declaration of title the Commissioner held .in favour of the plaintiff, on the ground that at the date of theinstitution of this action the added defendant had not obtained aFiscal’s transfer.
Held, on appeal, reversing the judgment of the Commissioner,thiat the plaintiff was not entitled to judgment, as he had boughtthe life interest during the pendency of the mortgage proceedings.
~|"N this case the following admissions were recorded:—
In 1892 (October 3) the mortgage bond was executed in favourof added defendant by the defendant. The bond was registeredon September 23, 1908. The bond was put in suit in C. R.Colombo, 11,578, on October 9, 1908. Decree was entered onOctober 20, 1908. Decree was not registered. A money decreewas obtained against (the mortgagor) the defendant on September 6,1908. Writ was issued under this decree, and the life interest ofthe defendant was put up for sale and purchased by the plaintiff'svendor on January 29, 1909.
Fiscal's transfer was . executed on July-15, 1Q09, and .registeredin August, 1909. Sale under the mortgage decree was held inApril, 1909, and purchased by the added defendant, who obtaineda Fiscal’s conveyance in May, 1912 (unregistered): The sale underboth decrees was the life interest only of the defendant.
The Acting Commissioner of Requests (K. Balasingham, Esq.)delivered the following, judgment:■—
The life interest sold was admittedly the property of the defendant.Under a money decree it was sold oh January 29, 1909, and a Fiscal’stransfer was obtained on July 15, 1909, which was duly registered inAugust. The purchaser at the Fiscal’s, sale sold it to the plaintiff onOctober 4, 1909. The defendant’s interest was sold under the mortgage
1918.
IMS*
SUva 0. Silva
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decree in April* 1900*. and purchased by the added defendant. Theadded defendant obtained a Fiscal’s transfer in May* 1912* which isstill unregistered. The present action was instituted on February 22*1912. At the date of the institution of this action the added defendanthad no title* as he had not obtained a Fiscal’s conveyance at that data[10 N. L. R. 44).
Plaintiff is therefore entitled to succeed in this action. It is notnecessary to decide the question whether the added defendant has a-good title on the assumption that he had obtained a conveyance beforethe institution of this action.
I enter judgment for the plaintiff as prayed for with costs. Thedecree in this case will not bar the added defendant from institutinganother section if he is so advised.
The defendants appealed.
W. Jayewardene, for the defendants* appellants.—Theplaintiff bought the property under a money decree during thependency of the mortgage action brought by the defendant. Theadded defendant bought the property under the mortgage decree.The defendant’s action must be considered to be pending tilljudgment was satisfied. The added defendant’s title is thereforesuperior to plaintiff’s title.
The case relied on by the Commissioner decides that a plaintiffwho has no title deed at the date of his action cannot succeed.The case of a defendant is different.
The defendant may produce his Fiscal’s conveyance at any timebefore trial. Counsel cited Samiappu v. Dmanayake,l Carolis v.Per era,2 SanrrCugam Chetty v. Khan,* Salt v. Cooper,4, Jayeuxardeneon Mortgage 112 et seq., Hukm Chand on Bee Judicata 275.
Samarawickrame, for plaintiff, respondent.—The rights of partiesmust be considered as of the date of action (Silva v. NonaHammine 5). Carolie v. Per era 2 is a partition action to whichdifferent principles would apply.
January. 23, 1913. Lascelles C.J.— .
This case.* No. 450, raises si .question of law of some littledifficulty.The added defendant purchased the life interest, which is the subjectof the action, under a mortgage decree. During the pendency ofthe mortgage proceedings a writ had been issued for the sale of thelife interest in execution of a money decree. At the execution salethe life interest was purchased by the plaintiff, who completed histitle by obtaining a Fiscal's transfer. Having obtained his Fiscal’stransfer, and before the added defendant had completed his title bya Fiscal’s transfer, the plaintiff sued the defendant and the added
1 (1902) 3 Br. $2.3 {1907) 2 A. C. R. 19.
a (1911) 14 N. L. B. 219.4 16 Ch. D. 544.
3 (1908) 10 N. L. B. 44.
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defendant for a declaration of title. The Commissioner has givenjudgment in favour of the plaintiff. He lays stress on the factthat the added defendant did not obtain his Fiscal's transfer untilafter the institution of the present action, and he therefore enteredjudgment for the plaintiff, observing that the judgment will notbar the added defendant from instituting another action if he is soadvised. Now, the result of this action is, in my opinion, almostabsurd. Judgment has been given for the plaintiff, and it is admit-ted that all the added defendant has to do, now that he has obtainedhis Fiscal’s transfer, is to bring another action and obtain a reversalof those proceedings. I cannot believe that our system of procedurecontemplates a position which is so manifestly unreasonable. Itwas contended that it waB open to the added defendant to provethe Fiscal’s transfer obtained by him after the institution of theaction, and that having done this, he was in the same position as ifhe had obtained a transfer before action brought. In support ofthis argument I was referred to the case of Carolig v. Perera.1 ButI am of opinion that this decision does not support the argumentof the respondent. The action in that case was a partition action;and in the judgment of Mr. Justice Grenier a distinction wasdrawn between an action for declaration of title and an action forpartition. The judgment is carefully limited to partition actions, andit was held that, in actions of that description, a party was entitledto rely on a Fiscal’s transfer obtained after action brought, on theground that if he was not allowed to do so he would never haveanother opportunity of asserting title. The true answer to thedifficulty in the present case is, I think, to be found in the position'of the plaintiff who bought during the pendency of the mortgageproceedings. The right which he obtained was subject to the resultof the mortgage action, and- subject to the decree therein. Theright which he obtained was, therefore, only a qualified right, andhe was not entitled as against the purchaser in the mortgage decreeto a declaration of title and an order of ejectment. In my opinionthe judgment is erroneous, and the plaintiff’s action must bedismissed against both the defendants with costs, as regards theadded defendant here-and: in the Court below, and as regardsdefendant in the Court below.
Set aside. i
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IlAUCHUms
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Silva «. 8Uva
i(1911)14 N. L. B. 109.