Jobling J:

The plaintiff in this suit claims damages from the defendants for conversion of two lighters.No appearance was entered for the first defendant, but the claim has been resisted by the second defendant, on whose behalf Mr. C O. Lim appeared.

The facts that appear from the pleadings and the evidence are as follows:

The two lighters claimed Nos PC466 and PC349 together with others were assigned by an Indenture of Mortgage to the plaintiff by way of security for the payment of the sum of $8,300 together with interest, which sum was to be repaid by six monthly instalments on the dates set out in the Mortgage Deed.This Mortgage Deed was duly recorded at the Harbour Master's Office on 26 January 1949.The Mortgage Deed contained a proviso entitling the plaintiff in default of payment of any instalment to seize and take possession of the mortgaged property and sell the same.On 25 June 1949 payment of the instalments was in arrear and mortgagee issued a summons to mortgagor in respect thereof.This summons was not served.

On 4 July 1949 the Bailiff of the Magistrates' Court, Penang, in execution of a judgment obtained by the first defendant against one Mastan Maricar seized the two lighters Nos. PC466 and PC349 and sold the same on 11 July 1949 at a public auction as the property of the said Mastan Maricar and delivered them to the second defendant, the highest bidder at the auction, as the purchaser.The Bailiff gave evidence that the first defendant personally pointed out the two lighters in question and informed him that they were the property of Mastan Maricar, against whom he had obtained judgment.

On these facts the plaintiff submits that as mortgagee he has the right to sue for the return of the property and that the registration of the Mortgage Deed at the Harbour Master's Office precludes the defendants saying that they have no notice of it.

Mr CO Lim resists this claim on the ground that the mortgagee was not the owner and therefore not the proper person to sue in this matter, and further that the second defendant acquired a good title by the sale by the Sheriff.He has also in the pleadings alleged that there is no privity of contract between the second defendant and the plaintiff and therefore no cause of action arises.

As this is a claim in tort and not in contract the question of privity of contract between the parties does not arise.The two points to be considered in this matter therefore are first, whether the mortgagee has the right to sue and secondly, whether the second defendant acquired a good title by purchasing at the Sheriff's sale.

It is well settled law that a mortgagee has the right to maintain an action in relation to the mortgaged property provided he has the right to take possession.In this case the plaintiffs right to possession arose under the mortgage immediately payment of the instalments by the mortgagor wad overdue.

Mr Lim has submitted that the action of the mortgagee in issuing a summons to the mortgagor for payment of the instalments amounted to waiver of his right to take possession.It is clear, however, that the issue of the summons in no way affected the mortgagee's right to possession; he could still have exercised it notwithstanding the summons. I find therefore that the mortgagee was a person with the right to possession and as such is entitled to maintain this action.

The law on the second point seems equally clear.In Farrant v. Thompson 5 B & Ald 826 it was held that where the goods sold by the Sheriff were those of a stranger and not of the party against whom the execution issued the owner could recover even against a bona fide purchaser for value.Mr. Lim objected that this authority only applied to an owner and not to a mortgagee.There is no substance in this contention.Legal title to the goods was conveyed to the mortgagee by the mortgage and although the right to redeem which resides in the mortgagor would also entitle him to maintain an action in relation to the proper