WIJEYEWARDENE v. APONSO

047-NLR-NLR-V-07-WIJEYEWARDENE-v.-APONSO.pdf


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WIJEYEWARDENE v. APONSC.
D. C., Colombo, 13,418.
Prescription—Action by mortgagee against administrator of deceased mortgagor—Payment of part interest after his death by widow of deceased who hadmarried in community—Effect of such payment—Right of heirs ofdeceased husband to resist action by plea of prescription—Ordinance No.
22 of 1871, s. 13.
In an action brought by a mortgagee against the administrator of theestate of the mortgagor who had been married in community, and whosewidow had paid some portion of the interest due,—
Held that, as the joint matrimonial estate of the mortgagor and hisspouse was originally liable on the obligation incurred by the husband,such liability could not be affected by the death of the husband, andthat the heirs of the deceased husband could not resist the mortgagor'saction on the plea that the payment of interest by his widow after hisdeath did not keep his share of the obligation alive.
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HIS was an action by a mortgagee against the administratorof the estate of the mortgagor on two bonds dated respect-
ively the 13th August, 1888, and 11th December, 1888. It wasalleged in the plaint that after the death of the mortgagorHarmanis Peris on the 20th April, 1889, his widow Selestinapaid the plaintiff from time to time certain sums of money asinterest through certain persons, and that all interest up to the31st December, 1891, had been paid, the last of such paymentshaving been paid on the 22nd September, 1895.
Two issues were formulated at the trial, namely: first, whetherinterest was paid as alleged; and second, whether the actioninstituted on the 3rd February, 1900, was prescribed.
The District Judge Mr. N. E. Cooke found that interest was notpaid by the mortgagor during his lifetime, but that it was paid byhis widow on five different dates -between 22nd November. 1899.and 22nd September, 1895; and as to the (|ues.tion of prescription,he ruled as follows : —
“ D. C., Kandy, 94,994 (7 S. ('. 192). and D. Kandy. 94,044(7 S. C. C. 133), were decided undhr the old' Prescription Ordi-nance, No. 8 of 1834. In the first case it was held that paymentof interest in order -to have*prescription must be a payment bythe debtor himself or his authorized agent. In the second case,where a husbsthd and wife had granted a bond mortgaging theircommon estate and the «wife died, it was held that the paymentof interest by the Imsband kept the debt alive as against the wife'sshare, in the land hypothecated as well as against his own.
" The present case must be governed bv the Prescription Ordi-nance, No. 22 of 1871. By section 6 of that Ordinance it is
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enacted that no action shall be maintainable for the recovery ofany sum due upon any hypothecation or mortgage of any propertyunless the same be commenced within ten years from the date ofsuch instrument of mortgage or hypothecation, or of last paymentof interest thereon; and it is provided by section IB of thatOrdinance that the payment of interest may be by any personwhatsoever. Here the payment of interest was by the widow ofthe mortgagor, who has an interest in .the property mortgaged.”
The learned District Judge held that the plaintiff’s action wasnot prescribed, and gave judgment for plaintiff as prayed.
The defendant appealed.
Samarawickrama (with him H. J. C. Pereira), for defendant,appellant.—Payment of interest by the widow does not take the caseout of prescription. Those payments were invalid. Payments tobe valid must be made by or in the name of the debtor (Henry’sVanderlinden, p. 264; Voet Ad Pand. 46, 3). Here the debtor wasdead, and no legal representative had been appointed to his estate.No valid payment, therefore, could have been made in respect ofthis debt. The payments pleaded were, in the eye of the law, nopayments at all. They certainly were not payments within themeaning of the Prescription Ordinance (3 Burge’s Colonial Laws,87U). This Court sitting collectively has followed .the Englishcases of Harding v. Edgecombe (28 L. J. Ex. 313), Chinnery v.Evans (11 H. L. 115), Dickenson v. Teasdale (1 De G. and 8. 52),and Harlock v. Ashberry (19 Ch. D. 539), and held in Clerihew’sCase (7 8. C. C. 192) that under Ordinance No. 8 of 1834 paymentof interest by the purchaser of the mortgaged premises was in-effectual for the purpose of taking the case out of prescription,as such payment was not an act of the debtor within the meaningof the 7th section of the Ordinance. The learned Judge, however,thought that the law has been altered by the first proviso tosection 13 of Ordinance No. 22 of 1871, and that the effect of thatproviso, which ran as follows:“ Provided that nothing herein
contained shall alter or takp away or lessen the effect of anypayment by any person whatsoever ”—was to make payment byany human being sufficient to keept a debt alive. Such a con-struction would defeat the object of the Ordinance, becauoe thepa creditor may always get a friend to make a small payment onaccount of any debt and take it out of the Ordinance. The provisoreferred to, so far from altering the law, exprfessly says that thelaw is to remain unaltered. Nothing in ,the Ordinance was toalter the effect of a payment, that is to say, the effect of a paymentwas to be the same as before, and what that was in such a case as
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1WB.tluS is clear from Clerihew t Case. Moreover, it has been expressly
Ombrr 2H. held in a case reported in ~ Ror. oml Ores. p. 23, under a provisoto a clause in 9 Geo. IV. J-i, expressed in almost the samewords, that payment by a joint surviving contractor after thedeath of the testator will not take the ease out of the Statute.These payments therefore not having been made by the debtoror his agent do not take the case out of the Ordinance, and nothaving been made even in the name of the debtor are legally nopayments at all, and the plaintiff 's claim is therefore prescribed.
Walter Pereira, for plaintiff,respondent.—-Payment by a .
stranger may not be sufficient for the purpose of taking the caseout of prescription, but payment by the widow stands onquite a different footing. She has an interest in the payment ofthe debt. In Gunawardena v. Liyana (7 S. C. C. p. 183) it washeld that payment by a surviving spouse kept the debt alive atleast for the purpose of enabling a mortgage to enforce his claimagainst the whole of the mortgaged property, including thedeceased wife's moiety. Heirs are .to a certain extent liable forthe debts of their intestate, and therefore are entitled to pay thedebts of the deceased. It is admitted that the widow had beenmarried in community of property. She was therefore jointlyliable for the debt of the community. These payments shouldtherefore be treated as payments made by one of two jointdebtors. Besides, it is clear law that a widow is entitled toadminister the common property. Wijeyaratna v. Abeyweerao 3. ('. S. 70; 1 under Linden's Institutes, Henry’s Trans, p. 264;Hadjiar v. Hendrick Appu, 2 N. L. R. 26. She is entitled tosell property belonging to the common estate. Therefore she isentitled to pay debts. Payments made by her take the case outof the Ordinance.
Cut. adv. vult.
29th October, 1903. Wexdt, J.—
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HIS is an action to recover two mortgage debts, and thequestion is whether the action* is barred by the limitation
contained in section 6 of the Prescription Ordinance of 1871.The mortgages are dated respectively 3rd August, 1888, and 11thDecember, 1888-, for Rs. 1,500 and Rs. 250 respectively, payable ondemand. The ^mortgagor Harmanis Fernando was at those datesmarried in the community of property to Selestina Peries. He diedintestate in April/1889, leaving her and certain issue survivinghim and leaving the debts unpaid. Letters of administration to theintestate’s estate were in November. 1899, granted to the defendant,his son-in-law.
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The 'present action was commencedby the mortgagee in1903.
February, 1900, against the administrator; and in order to take October 29.thecase out of prescription he allegedthat “ Selestina PeriesyENf>?. j.
(through her lessee Don Charles), Carolis Fernando, brotherof the deceased, and the defendant paid the plaintiff the interestwhich from time to time fell due in respect of the said bondsup to 31st December, 1891 (the last of which said paymentswason 22nd September, 1895).” Thelearned District Judge
has found, and there is no reason to disagree with thefinding, that five or six months after the mortgagor’s death (whohadhimself paid no interest) the plaintiff sent word to the
widow demanding payment, that she called on him and promisedto pay the interest due on the bonds, and that thereafter plaintiff
received .the following payments of interest: —
Novmber 22, 1889, through Don CharlesOctober 31, 1890, through Don CharlesNovember 30, 1891, through CarolisAugust 30, 1895, through defendantSeptember 22, 1895, through defendant
The widow had leased the mortgaged property to Don Charlesby instrument dated 28rd November, 1889, and the payments of1889 and 1890 were made by the lessee on account of the rentreserved and at the request of the widow. These payments weretherefore in effect made by the widow herself, and if they weresufficient to prevent the statutory bar from attaching, the actionwas brought in time. The question then is whether the widow’spayment of interest had that effect.
The District Judge has, I think, misread the words of the firstproviso to section 13 of the Ordinance. If I understand himaright, he reads them as a legislative enactment “ that the paymentof interest may be by any person whatsoever.” Now, the wordsdo not express a direct enactment at all, but expressly contain aproviso only, saving the effect of payments made by any personwhatsoever from the operation of the Ordinance. In other words,payments are to have the same effect as if the Ordinance had notbeen passed. The Ordinance does not profess to indicate thepersons Entitled to make payments; for that we must look to thegeneral law (see the history and effect of this proviso lucidlyexplained by Clarence, J., in Sathappa Chetty v. MutturamepC-hetty, 5 S. C. C. 62). The District Judge, however^ holds that thewidow was entitled to make the payment and keep the debt alive,because she had an interest in the property mortgaged. And we
have to consider whether tjiis view is correct.
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Harmanis Fernando, as the sqle administrator of the propertyheld in community by himself and his wife, was entitled to create
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1903. a valid mortgage over the entirety of this land without the concur-October g9, j.enoe) or even against the will, of his wife. The debt bfecame aWekdt, J. debt of the community, and by the Eoman-Dutch Law, on the hus-band’s death, his moiety devolved on his children, and the widow’smoiety remained to her at her own absolute disposal, but burdenedwith the mortgage. She could then be sued for a moiety of thedebt. Grotius 1, 5, 22 (Maasdorp’s Translation, 1st Ed., p. 26);
– Vander Keessel, Th. 93; Vander Linden, 1,3,7 (Juta’s Translation, 2ndEd., p. 23). Her obligation was therefore a joint one with the heirsof her husband, not an obligation in solidum. As respects inter-ruption of prescription, the act of one of the debtors which effectssuch interruption binds all, if the obligation is in solidum, butnot if it is joint: Voet 46, 1, 6; Pothier (Evans’ Transl.), vol. I.,459, 460. If therefore we regard the widow as being at the dateof her payments an ordinary joint obligor with her husband’sheirs, those payments will not avail the creditor as against thepresent defendant.
But in' my opinion a widow in Selestina Peries’s position issomething more than a mere joint obligor. As the survivingspouse, she was entitled to administer her husband’s estate tothe extent of selling the common property in order to pay a debtof the community. Ederemanasingham’s Case, Vand. 264; Wije-ratna v. Abeyweera, 5 .8. C. C. 70; Ferdinandis v. Fernando,5 S. C. G. 162. She may also mortgage such property for the samepurpose. Fernando v. Fernando, 3 Lor. 239; Hadjiar v. HendrickAppu, 2 N. L. B. 26. If she can do so much, I do not see howshe can be denied the right to pay interest upon an obligation ofthe community secured by mortgage of the common estate. Inthe present instance the widow leased the entirety (not the moietyonly) of the mortgaged land, and the sums paid as interest comeout of the very mortgaged property in the shape of rent. It isto be observed that the statutory bar had not attached at the dateof the payments under consideration. There is therefore no suchquestion here as was raised in D. C., Negombo, No. 3,185, Civ. Min.,November 29, 1900, as to the widow’s right to give a new bond inplace of a community debt which was already statute-barred.
Of the cases cited, at the argument none are exactly in point.In Guhawardana v. Liyana (7 S. C. 0. 183) there was a jointand several mortgage by husband and wife, and payments ofinterest by the husba'nd,. (the first defendant in the action) afterthe wife’s death ‘were held to interrupt prescription of themortgagee’s claim against the qther defendants, the heirs of thewife—that claim as regards them being only for a mortgagedecree against the land and not involving any liability for the
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debt quoad ultra. Burnside, C.J., said that “ so long as the 1903-liability of one of the joint and several debtors remained and was 0ctobeT 29-not prescribed, the whole property which had been pledged to Wendt, J.meet the liability of either debtor continued bound for thatpurpose.” In the present case, apart from any question of jointor joint and several liability, the action is not against the debtorwho made the payments, unless indeed we regard her as sued inthe person of the husband’s administrator. (Compare Mack v.
Fernando, 7 S. C. C. 82; Perera v. Silva, 2 C. L. B. ISO.)
Clarence, J., stated that the splitting up of the mortgaged propertyby devolution (as in that case) or conveyance could not affectthe mortgagee’s right to enforce his encumbrance, except so faras it made a change in the individuals necessary to be sued, andthat “ therefore the hypothecary action for reaching the moietyof the hypothecated property inherited by the children fromtheir deceased parent cannot be barred, so long as there has beenwithin ten years before action brought a payment of interest bythe person, their father, on whom the other half of the hypothe-catedpropertydevolved ontheir mother’s death.”Beading
this in the light of the learned Justice’s remarks on the case ofFernando v. Silva, Bam. {1876) 320, presently to be mentioned,it isan opinion supportingthe maintenance of thepresent
actionat leastto the extentof rendering Harmanis Fernando’s
moiety of the hypothecated property liable for the debt, inaddition to the widow’s moiety whose liability is continuedby her own payment of interest- Dias, J., rested his judgmenton the groundthat the twodebtors being bound insolidum,
the acknowledgment of one of them interrupted prescriptionagainst the heirs of the other.
Clerihew v. Leechman {7 S. C. C. 192) decided merely that thepayment of interest by a vendee of the mortgaged land, who wasof course in no degree liable for the debt, and who had not theauthority of the mortgagor to make such payment, did notinterrupt prescription against the mortgagor’s personal liabilityfor the debt. .*
In Fernando v. Silva the husband alone of the two spousesmarried in communitv had executed'’the mortgage, and he, madepayments of interest after the date of his wife’s death. More thanten years after that date, the creditor sued .the wife’s heirs (herchildren) who were in possession of a share <»of the mortgagedland, all- -,ing a balance dpe on the mortgage. Clarence, J.) heldthat the iciendaiih and their father stood in the position of jointheirs of a deceased debtor, and that therefore a payment by one
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1903. of them would keep the encumbrance alive in respect of hisOctober 29. intsrest only in the mortgaged land. The action was accordinglyWendt, J. dismissed. But in Qunawardana v. IAyana Clarence, J–expressed the opinion that his decision in this case was erroneous.He considered that it made no difference whether the husband aloneor both husband and wife had executed the mortgage, inasmuch asthe husband had undoubtedly power to mortgage the whole ofthe property which was subject to the marriage community,and proceeded to express the view which I have already quoted asapplicable to the case now in hand, viz., that payment of interestby the spouse on whom a moiety of the hypothecated propertyhad devolved kept the encumbrance ill force against the othermoiety as well.
For the reasons already given I consider that defendant'sappeal should be dismissed.
Middleton, J.—
I have had the advantage of reading the judgment of my brotherWendt.
The question in the case is, whether the payment of interest,upon, mortgage bonds granted by the deceased husband onproperty, held in community, by the surviving spouse, will bindthe heirs inheriting the husband’s moiety so as to prevent the.Statute of Limitations (Ordinance No.. 22 of 1871, sections 6. 13)running in their favour as regards their moiety of the mortgagedebt.
Under Roman-Dutch Law it would appear that the widow'sobligation under the bonds would be a joint one with the husband'sheirs. It would seem, however, to have been held that a widowmay sell or mortgage the common property to pay a debt of thecommunity. If she can do this a fortiori she ought to have theright to pay interest on an already incurred obligation of thecommunity.
In this case the widow seems to- have given a lease of the mort-gaged property apparently ^with the knowledge of her husband’s♦ heirs) they not objecting, and thereby acting for them in theadministration of their common affairs.
From the fruits of’this lease the interest was paid.
I think therefore that the act of the^ widow in so doing was theact of the heirs, and that they are bound by it, and agree indismissing the appeal with costsi
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Gbenieb, J.—
I agree to dismiss this appeal.
I have always understood the Boman-Dutch Law to be, as it isin force in this Colony, and as it has been interpreted and expresslylaid down by several decisions of this Court which it is needlessfor me to refer to, that the husband has the right to alienate ormortgage any property belonging to the joint matrimonial estateduring the existence of the community, and that the widow hasthe right to sell property of the common estate in order to pay anydebts incurred by the husband. If the law gave the widow theright to do this—see Ederemanasingham'8 Case, Vander. 264,and the other cases cited by my brother Wendt—then it neces-sarily follows that in this right is included the right to alienateproperty for the payment of interest which had accrued on debtscontracted by the husband. It is therefore obvious in this casethat, as the joint matrimonial estate of both the spouses wasoriginally liable on the obligations incurred by the husband, suchliability cannot be affected by the death of one of the spouses.The heirs of the deceased spouse cannot be allowed to say that thepayment of interest by the widow after the death of the husbandonly related to and kept alive her share of the obligations and nother husband’s, and that the moiety belonging to the deceasedt-pous'*unaffected by such payment.
The widow by paying interest kept alive the entire liabilityjust in the same way as she would have kept it alive if she, insteadof her husband, had paid interest during the existence of – thecommunity, and whilst her husband was living. Any hypothe-cation of property by the husband during his lifetime was asmuch his own act as that of the wife and is binding on her; andthe creditor is entitled to realize the debt due to him from thewhole of such property, and not from the widow’s moiety only.
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