Goonatilleke V. Jayasekera Et Al.,

present: Hutchinson C.J. and Grenier J.   Jan.6,1911

GOONATILLEKE v. JAYASEKERA et. al

385-C. R. Galle, 6,074.

Mortgage of immovables Subsequent acquisition of title by mortgagor-Mortgage to another person after acquisition of title-Land purchased by prior mortgagee at Fiscal's sale-Third mortgage, before Fiscal's conveyance to prior mortgagee by owner, to pay off puisne mortgagee's decree-Legal subrogation-Priority.

A, who acquired title to a land in December, 1903, specially mortgaged it to B in April, 1903. In May, 1904, A mortgaged the same land to C. In April, 1905. B obtained a mortgage decree on his bond, and at the Fiscal's sale bought the land in December, 1905, and obtained a Fiscal's transfer in December, 1906. In March, 1906. A, in order to pay off C, who had obtained a mortgage decree against him mortgaged the land to D. In November, 1906, D sued A on his bond and bought the land himself. In an action for declaration of title by B against D, held that B had a superior title.

Grenier J.-Under the Roman-Dutch Law a person may mortgage property of which he is not the owner at the date of the mortgage, whether that property consists of movables or immovables. When such a mortgage is effected, the first mortgage is preferential to any subsequent mortgage after the mortgagor had acquired ownership.

THE facts are set out by Hutchinson C.J. in his judgment as follows: -

This is an action for declaration of title to land. The plaintiff claims under a Fiscal's conveyance to him on a sale of the mortgagor's interest under a mortgage decree; the first defendant claims under a Fiscal's conveyance to him on sale under another mortgage decree; the other defendants are lessees under the first. On April 8, 1903, H. W. Disanayake purported to mortgage the land to the plaintiff; the deed was registered on April 20, 1903. Disanayake had no title then, but he acquired title to the land in December, 1903. March 1, 1904, Disanayake mortgaged the same land to Gunasekera; the deed, which contains no reference to the prior mortgage, was registered on November 3, 1904. April 20, 1905, the plaintiff, in an action on his bond against the mortgagor, obtained a mortgage decree December 14, 1905, the land was sold in execution under that decree and was bought by the plaintiff, who obtained a Fiscal's transfer December 11, 1906, registered December 14, 1906. March 30, 1906, Disanayake, in order to pay off Gunasekera, who obtained

a mortgage decree against him, mortgaged the land to the first defendant. November 13, 1906, the first defendant sued Disanayake on his bond; he obtained a mortgaged decree, under which the land was sold in execution and bought by him, and he duly obtained a Fiscal's transfer. The Commissioner of Requests held that the plaintiff had priority, and gave judgment for him.

The defendants appealed.

The case first came on for argument before Wood Renton J., who reserved it for argument before a Bench of two Judges.

A. St. V. Jayewardene, for the defendants, appellants.-The learned Judge is wrong in holding that the title acquired by Disanayake in December 1903, accrued to the benefit of the plaintiff, whose mortgage was executed in April, 1903. Voet says (20, 3, 6) that where a person specially mortgages another's immovables as his own and afterwards acquires title to the same, they are only bound to the creditor by the tie of mortgage in so far as future property has also been included in a clause of general hypothec, and if the mortgagor after having acquired the ownership specially mortgage the immovables to another, the latter creditor would be preferent. By Ordinance No. 7 of 1871 general conventional mortgages have been abolished, so that by our law a mortgage by a person of another's property creates no charge at all over it. The principle that the subsequent acquisition of title relates back to render a previous mortgage valid applies only to mova

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