Back
WIJEYEWARDENE v. APONSO
NLR7V198
WIJEYEWARDENE v.
APONSO.
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 had married in community-Effect of such payment-Right of heirs of deceased 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 the estate of the mortgagor who had been married in community, and whose widow had paid some portion of the interest due,-
Held that, as
the joint matrimonial estate of the mortgagor and his spouse was originally
liable on the obligation incurred by the husband, such liability could not be
affected by the death of the husband, . and that the heirs of the deceased
husband could not resist the mortgagor's action on the plea that the payment of
interest by his widow after his death did not keep his share of the obligation
alive.
THIS
was an action by a mortgagee against the administrator of the estate of the
mortgagor on two bonds dated respectively the 13th August, 1888, and 11th
December, 1888. It was alleged in the plaint that after the death of the
mortgagor Harmanis Peris on the 20th April, 1889, his widow Selestina paid the
plaintiff from time to time certain sums of money as interest through certain
persons, and that all interest up to the 31st December, 1891, had been paid, the
last of such payments having been paid on the 22nd September, 1895.
Two issues were formulated at the trial, namely : first, whether interest was paid as alleged; and second, whether the action instituted on the 3rd February, 1900, was prescribed.
The District Judge Mr. N. E. Cooke found that interest was not paid by the mortgagor during his lifetime, but that it was paid by his widow on five different dates -between 22nd November, 1889, and 22nd September, 1895; and as to the question of prescription, he ruled as follows : -
" D. C, Kandy, 94,994 (7 S. C. C. 192), and D. C, Kandy, 94,944 (7 S. C. C. 183), were decided under the old Prescription Ordinance,, No. 8 of 1834. In the first case it was held that payment of interest in order to have prescription must be a payment by the debtor himself or his authorized agent. In the second case, where a husband and wife had granted a bond mortgaging their common estate and the wife died, it was held that the payment of interest by the husband kept the debt alive as against the wife's share in the land hypothecated as well as against his own.
" The present case must be governed by the Prescription Ordinance, No. 22 of 1871. By section 6 of that Ordinance it is
enacted that no action shall be maintainable for the recovery of any sum due upon any hypothecation or mortgage of any property unless the same be commenced within ten years from the date of such instrument of mortgage or hypothecation, or of last payment of interest thereon; and it is provided by section 13 of that Ordinance that the payment of interest may be by any person whatsoever. Here the payment of interest was by the widow of the mortgagor, who has an interest in the property mortgaged."
The learned District Judge held that the plaintiff's action was not prescribed, and gave judgment for plaintiff as prayed.
The defendant
appealed.
Samarawickrama (with him H. J. G. Pereira), for defendant,
appellant.-Payment of interest by the widow does not take the case out of
prescription. Those payments were invalid. Payments to be valid must be made by
or in the name of the debtor (Henry's Vanderlinden, p. 264; Voet Ad Pand. 46,
3). Here the debtor was dead, and no legal representative had been appointed
to his estate. No valid payment, therefore, could have been made in respect of
this debt. The payments pleaded were, in the eye of the law, no payments at all.
They certainly were not payments within the meaning of t
