Alwis V. Fernando Et Al.,

Feb.13,1911   Present: Hutchinson C.J. and Middleton J.

ALWIS v. FERNANDO et al.

341-D. C. Colombo, 30,220.

Mortgage-Subsequent acquisition of title by mortgagor-Conveyance by mortgagor to another after acquisition of title-Subsequent grantee acquires a title unfettered by mortgage.

A mortgaged a land to B in 1898 when he had no title to the land. In 1902 A acquired title to the land. In 1903 C bought the land from A for valuable consideration in good faith and without notice of the mortgage bond.

Held, (1) that C acquired title to the land unfettered by the mortgage to B; (2) that C was not A's " representative," and was not estopped by any representation which A made from denying that A had any title at the date of the mortgage bond.

Under the Roman-Dutch Law a mortgage of immovable property by a person who at the date of the mortgage is not the owner does not become valid when he subsequently acquires ownership (as against a bona fide purchaser from the mortgagor after he had acquired title).

APPEAL from a judgment of the Acting District Judge, Colombo (Allan Drieberg, Esq.). The facts are set out in the judgment.

Vernon Grenier (with him H. A. Jayewardene), for plaintiff, appellant.-The case relied on by the District Judge (Don Carolis v. Jamis1[(1909) 1 Cur. L. R. 224.]) does not apply, for this is the case of a mortgage and not of a sale. The Roman-Dutch Law is clear that in certain circumstances a mortgage of another's property is valid (Voet 20, 3, 4, 7). Ordinance No. 7 of 1840 only specifies the mode in which mortgages may be created, and we have satisfied its provisions on this point [Hutchinson C.J. referred counsel to the judgment of Grenier J. in 385-C. R, Galle, January 6, 1911.]

Savundranayagam (with him Jayatileke), for respondents.-Under the Roman-Dutch Law it is only in the case of general mortgages, including future property, that property which did not belong to the mortgagor at the date of the mortgage would, on the mortgagor subsequently acquiring title, become bound by the mortgage. In Ceylon general mortgages are no longer in force; the principle of the Roman-Dutch Law would not apply now. Berwick's Voet, pp. 280, 359. Counsel cited Don Carolis v. Jamis,1 Guruhamy v. Subaseris,2 Kadiravelupulle v. Pinna.3

Grenier, in reply, cited Censura Forensis, IV., 7, 18.

Cur. adv. vult.

February 13, 1911. Hutchinson C.J.-

The plaintiff sues on two mortgage bonds granted by Dominga Fernando to David de Alwis in 1898 and 1899; he sues as the executor of the mortgagee. The defendants claim the land under a transfer from Dominga Fernando made in 1903. At the date of the mortgages Dominga Fernando had no title to the land; it was vested in the Crown, which gave a Crown grant to her in 1902. The District Judge has found, and the evidence supports the finding, that the defendants when they obtained their transfer in 1903 had no notice of the mortgages, and were no parties to the fraud, if any, committed by the mortgagor, Dominga Fernando. He gave judgment for the plaintiff against the first defendant, who is the legal representative of Dominga Fernando, for the amount of the mortgage debt, but refused to grant a hypothecary decree; and the plaintiff appeals and claims a hypothecary decree.

At the date of the mortgages, and until the date of the Crown grant to Dominga, the dominium was vested in the Crown free from the mortgages. The Crown grant transferred that title to Dominga, and she transferred it to the defendants, who acquired it for valuable consideration, and in good faith, and without notice of the mortgage bonds. They are not her " representatives," and are not estopped by any representation which she made from denying that she had any title at the date of the mortgage bonds.

Mr. Grenier, for the appellant, contended that under the Roman-Dutch Law a mortgage for immovable property by a person who at the date of the mortgage is not the owner, be

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