1922  Present : Bertram C.J. and Schneider J.

APPUHAMY et al. v. BABY SINGHO.

101-D. C. Galle, 18,853.

Assignment of a usufructuary mortgage-Mortgage of the land by the assignee as though he were the owner-Land sold by auctioneer- Conveyance of land to purchaser-Right of purchaser to take the produce.

Plaintiff executed a usufructuary mortgage of. the land in favour of. T. T assigned this mortgage to J, ,J executed in favour of P what was apparently intended to be a mortgage of his mortgage rights. The deed, however, purported to mortgage the lands originally mortgaged by the plaintiff as though J was the owner. P put the bond in suit, and under the decree the land was sold by an auctioneer, who conveyed the land itself to the purchaser.

Held, that the purchaser under this deed acquired the usufructuary rights of J to take the produce of the land in lien of the interest on the mortgage debt.

THE facts are set out in the judgment.

Samarawickreme (with him M. W. H. de Silva), for plaintiff, appellant.

E. W. Jayawardene (with him Samarakoon), for defendant, respondent.

September 19, 1922. BERTRAM C.J.-

This was an action by way of rei vindicatio on the part of the plaintiff, who is admittedly the owner of the land. In 1889, by D 1, lie executed a usufructuary mortgage of the land to one Thomis. In 1912 Thomas assigned this mortgage to Johanis. In 1915 Johanis executed in favour of Podinona what was apparently intended to be a mortgage of his mortgage rights. The deed in fact, however, purported to mortgage the lands originally mortgaged by the plaintiff as though Johanis was their owner. Certain words were, however, added with reference to the mortgage debt, so that the deed concluded as follows: " These properties and the amount, which was kept for safety in the herein said deed bearing No. 7,088, together with all the right and title which I have thereto, do hereby mortgage and hypothecate, &c." It was admitted by Mr. Samarawickreme, who appeared for the appellant, that the inclusion of the words "the amount which was kept for safety, &c," may be

regarded as an assignment of the mortgage bond by way of a mortgage. Podinona put this bond in suit and recovered judgment. There can be DO doubt that, had the proper formalities been observed, the Fiscal could have seined the mortgage debt and the right to have the land realized for the purpose of discharging it. He did not do so, however. What happened was that an auctioneer's transfer was executed which purported to convey the land itself. The property sold was set out in the schedule, but in the body of the deed it was declared that what was granted and conveyed to the purchaser was all the property appearing in the schedule, "together with all easements, rights, and advantages whatsoever,&c and all the estate, right, title, interest, claim, and
demand whatsoever of the said Johanis" in the property.

Now, the question that arises is whether the purchaser under this deed acquired the usufructuary rights of Johanis to take the produce of the land in lieu of the interest on the mortgage debt. Mr. Samarawickreme has contended that no such rights passed to
the purchaser. He says that these usufructuary rights are purely ancillary to the mortgage debt, and can only exist in conjunction with the mortgage debt. He contends, therefore, that they did not pass to the purchaser. In my opinion this contention is erroneous. It is quite true that in a mortgage there are certain rights which are ancillary to the main obligation, and can only exist with that obligation. I refer particularly to the right to have the land sold for realization of the debt, but the right to take the produce
in lieu of interest is not a right of this description.
 
It must be conceded that if a man is indebted to me, and the debt carries interest, I may assign to others the debt and the interest separately. The right to take the produce of a land, su