PRINS v. PIERIS.

D. C., Colombo, 12,115.

Creditor and debtor-Death of debtor-Action against his widow as executrix do son tort on deceased's mortgage bond-Sale by Fiscal in execution- Purchase by mortgage-creditor-Acquiescence of widow-Subsequent conveyance by widow to her children-Action rei vindicatio by children's vendee-Validity of Fiscal's conveyance to creditor.

A debtor having died intestate, leaving him surviving his widow and children, his creditor recovered judgment against the Widow as executrix de son tort, and at the sale in execution became the purchaser of the property. He entered into possession and greatly improved it.

Several years afterwards, when certain of the minor children of the mortgage-debtor arrived at their majority, the widow purported to transfer certain shares of the property to them, and they purported to sell such shares to plaintiff.

In an action rei vindicatio raised by the plaintiff against the heirs of the mortgage purchaser, who were in possession of the property,-

Held, per Bonser, C. J.-That the mortgagee's action against the widow was rightly brought against her, whether she be treated as executrix de son tort or as the surviving partner in the community; that it was too late in the day to argue that the English Law of executor de son tort was not in force in Ceylon; that it was the duty of the widow to pay the debts of the community by selling, if necessary, the property of the community; that as the property sold was admitted by the plaintiff to have been " duly " seized by the Fiscal, it must be presumed to have been in her possession; and as the widow had not disputed the mortgage-creditor's action against her, but even admitted, in the account rendered by her to the Court as administratrix, that this creditor's debt had been satisfied by the sale of the property in question, she must be held to have acquiesced in the sale, and could not thereafter make a good conveyance to her children.

ACTION rei vindicatio in regard to three fourteenth shares of a tea estate called Elbedde. The facts of the case, as found by the additional District Judge, were these: -

In 1872 one Carolis Perera bought this land from the Crown and planted it with coffee by means of money borrowed from the father of the defendants, Mr. Jeronis Pieris. In 1879, when Carolis Perera died, there were six mortgages on the property amounting in the aggregate to Rs. 100,000. He left a widow (who had been married in community) and seven children. While her application for letters of administration was pending in Court, Mr. Jeronis Pieris put his bonds in suit against the-widow as executrix de son tort, obtained a mortgage decree, had the estate sold by the Fiscal, and became the purchaser of it for Rs. 70,000 in February, 1880, He entered into possession and converted the old coffee estate into a flourishing tea estate. Neither he, nor after his death his sons, the present defendants, were disturbed in possession till the

present action was raised on the 31st December, 1898, on the footing of a deed of transfer which the widow purported to make on the 10th April, 1855, in favour of her three youngest children of three-fourteenths of the estate, and a deed of sale executed on the same day by the three children in favour of the plaintiff for a consideration of Rs. 167.

The question at issue was whether or not Mr. Jeronis Moris, who held the Fiscal's conveyance, obtained a valid title to the three fourteenth shares which the children, who were not represented in the mortgage suit, purported to sell to the plaintiff.

The Additional District Judge dismissed plaintiff's case in these terms: -

" It being admitted that Rs. 100,000 and interest were due to Mr. Jeronis Pieris by the community, it follows that by whatever name the decree in Mr. Pieris's favour may be described, the whole of the common estate in possession of the widow was liable there under for payment of the debt