049-NLR-NLR-V-27-SINGER-SEWING-MACHINE-COMPANY-v.-HANIFFA.pdf
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Present: Garvin J.
SINGER SEWING MACHINE COMPANY t HANIFFA.
190—C. .K. Colombo, 18,657.
Landlord and tenant—Exercise of lien—Goods bought by the tenant on thehire-purchase system—Sale in execution.
A landlord is entitled to exercise his lien for non-payment ofrent over property obtained by the tenant under the hire-purchasesystem.
Where such property was purchased by the landlord under salein execution against the tenant his title is not limited to theinterest of the tenant in the property.
A CTION by the plaintiffs to be declared entitled to a Singersewing machine as against the defendant. The plaintiffs,who were the owners of the machine, delivered it to one 0. F. deZilva on the hire-purchase system. Zilva paid the instalments forthree months and then made default. Meanwhile the defendant,who had sued Zilva for arrears of rent, seized the machine inexecution of his writ, caused it to be sold by the Fiscal and pur-chased it. The learned Commissioner of Requests dismissed theplaintiffs3 action.
H. F. Perera, for plaintiffs, appellant.
Croos Da Brera, for defendant, respondent.
November 3, 1925. Garvin J.—
The facts material to this appeal are not in dispute. The plaintiffsdelivered a Singer sewing machine to one O. F. de Zilva on what isknown as the hire-purchase system. Zilva paid the instalments duefor three months and then made default. In the meantime hislandlord, the defendant, who had sued Zilva for arrears of rent,seized the machine in execution of his writ, caused it to be sold bythe Fiscal, and purchased it himself. In this action the plaintiffsare seeking, as against the defendant, a declaration that the macliineis their property. There can be no doubt that the plaintiffs werethe owners of the machine, and that Zilva had not at the time of theseizure and sale by the defendant acquired a title to the machine.The defendant, however, contends that the machine was subject tothe lien for rent which he as landlord was entitled to exercise, thathe did exercise his rights by causing the same to be seized and soldand that any defect of title in Zilva has thus been cured. It hasbeen strongly urged that the sewing machine was not subject to
12(61)29
1925.
{ 258 )
1925*
Garvin J.
Singer
RentingMachineCompany v*Haniffa
the landlord’s lien. The terms of the agreement were carefullyanalysed, and counsel endeavoured to draw a distinction betweenthis agreement and certain other agreements, in the case of whichit has been held that the property delivered under those agreementswas subject to the lien. The lien of a landlord ordinarily appliesonly to the property of his tenant, but it extends to the property ofthird persons where the property has been taken into the hiredpremises with the consent of their owner with a view to being keptthere permanently for the use of the tenant (see Voet 20, title 2,&. 5). The foundation of this rule in so far as it affects theproperty of third persons is said to be that, if an owner allows hisproperty to be on such premises, he is taken to have tacitly consentedthat it should be subject to the landlord’s lien for unpaid rent (videWille, Landlord and Tenant 378).
This presumption may, of course, be rebutted by proof of anexpress declaration by the owner of the goods to the landlord thathe had not consented to his property being subject to the landlord’slien, but there is no evidence in this case of any such declaration.It remains, therefore, to consider whether the, circumstances of thiscase justify the conclusion that this machine was brought on to thepremises of the tenant with the consent of the owner to remainthere “ permanently ” and for the use of the tenant. That themachine had been taken on to these premises with the consent of'the owner and for the use of the tenant is beyond question. Thecontention on behalf of the plaintiffs would seem to be that havingregard to the terms of this agreement it cannot fairly be said that itwas intended that it should remain permanently on the premises.In the case of the Anglo-Oriental Furnishing Co. v. Samarasinghe1a very similar question was considered, and it was held that furnituredelivered to the tenant on the hire purchase system was subject tothe landlord’s lien. As has been observed, counsel has endeavouredto draw a distinction between the terms of the two agreements.His principal argument was that whereas in the case above referredto the furniture automatically became the property of the ownerwhen the last instalment was paid, in this instance the payment ofall the instalments give the tenant an option of claiming a transferof the owner’s rights which he may or may not exercise. In sofar as it bears on the question of whether or no there is sufficientevidence of permanency it seems to me that this is a distinctionwithout a difference. It is unthinkable that a hirer who hadfulfilled his part of the contract and had thereby become entitledto a surrender of the owner’s claims without any further paymentor consideration whatever will refrain from exercising that option.Under the agreement the owner clearly had no right to removethe machine so long as the instalments were regularly paid. It isevident from the terms of the agreement that its ultimate purpose1 {1903) 7 N. L. J?. 12.
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was that .the owner should effect a sale of the machine, and that itwas the intention of both parties that the machine so deliveredshould be used by the tenant until it eventually became his property.In addition to the local case earlier cited, there are rulings of theCourts of South Africa that property in the possession of a tenantunder such circumstances must be deemed to be there sufficientlypermanently to make it subject to the landlord’s lien. Thesereports are unfortunately not available to us. But extracts of thosejudgments are to be found in Wille on Landlord and Tenant atp. 382 and in Nathan’s Common Law of South Africa, Volume 2,5. 1008, p. 1065. There is therefore a considerable volumeof authority in support of the contention of the defendant that thismachine was subject to his lien, and I hold accordingly.
A further contention urged on behalf of the appellants has to beconsidered. It was argued that inasmuch as this machine wasseized and sold in execution of an ordinary judgment for money andnot in execution of a writ declaring this machine specially executableas part of the property subject to the landlord’s lien, the purchaserat the execution sale—in this instance the landlord himself—can-not claim a better title than the judgment-debtor.
The Code of Civil Procedure lays down no special procedurerequiring a landlord to obtain a declaration that the property onthe leased premises over which he claims a lien is subject to thislien, nor is there any provision of law which debars him fromestablishing at any time that such property if sold in executionwas subject to his lien unless he has first obtained such a specialdeclaration.
The landlord’s lien attaches to the property of his tenant imme-diately that tenant falls into arrears with his rent and continues solong as the rent remains unpaid.
Ordinarily the lien is lost if the property passes out of thepossession of the tenant, but no such thing occurred in the case underconsideration. The machine was always in the possession of thetenant: it was seized in his possession and remained in suchpossession till it was sold. The lien was effective throughout, andthe machine was in my opinion subject to that lien at the date ofseizure and sale.
It seems to me that, unless it can be shown that a lien which waseffective in fact is not to be deemed to be effective in law unless itwas made effective by some special legal process, this machine mustbe deemed to have been subject to the lien when it was sold and thata good title has passed to the purchaser at the sale.
1 would therefore dismiss this appeal, with costs.
1925.
Garvin J.
SingerSewingMachineCompany v.Naniffa
Appeal dismissed.