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WICKREMESINGHE et al. v. ENSOHAMY et al.
NLR25V433
Present; De Sampayo and Porter JJ. - 1922.
WICKREMESINGHE et al. v. ENSOHAMY et al.
184-D. C. Matara, 9,018.
Gift of share derived by purchase-Mortgage of share described as derived by
inheritance-Smaller share derived by inheritance-Prior registration of
mortgage-Is mortgage good for the entire share mortgaged ? - Recitals -
Conveyancing - Estoppel - Vendor and Purchaser-Misdescription in Fiscal's
conveyance of area of property sold under mortgage decree-Seizure.
A, who was entitled to a 1/18 of a land by inheritance and another share by
purchase, donated a share to his children (the plaintiffs), describing it as
property belonging to him by right of purchase. Subsequently, he mortgaged to S
1/3 share which he stated he was entitled to by inheritance. The mortgaged bond
was registered first.
The plaintiffs contended that as the share mortgaged was described as the share
acquired by right of inheritance, the mortgage did not come into conflict with
the deed of gift which dealt with a share described as acquired by purchase.
Held, that the mortgage, in spite of the recital, was good for 1/3 share ;
moreover, A was estopped from denying that he mortgaged 1/3 share of the land to
S.
If a person sells a specific thing, even though his source of title
to it is mistakenly stated, his title, however derived, passes to the purchaser.
On the other hand, it is possible for the vendor,
intending to sell the thing only so far as it belongs to him by some
particular title, to execute a deed for that limited purpose, in which case the
purchaser may not be entitled to the thing if that title fails.
The mortgage decree, the seizure, and the notice of sale correctly described the
land. The Fiscal's transfer also describe the land properly by boundaries, but
stated the area as two acres instead of five acres.
Held, that the error did not materially affect the title.
" The decisive factor is the seizure in pursuance of which the sale takes place,
and any misdescription in the Fiscal's conveyance is immaterial as long as the
identity of the property is clear."
THE facts are stated in the judgment.
The mortgage bond was as follows :-
Debt and Mortgage No. 63.
Know all men by these presents that I, Cornells Wickremasinhe, of Kadawedia,
within the Four Gravets of Matara (hereinafter called the debtor), have
demanded, borrowed, and received from Siddiaratchige Don Theadoris de Silva
Appuhamy of Gabadawedia, within the Four - Gravets of Matara aforesaid
(hereinafter called the creditor), a sum of Rs. 80, lawful money of Ceylon, and
bounded myself unto the said creditor for the payment of which said sum of Rs.
80.
Wherefore renouncing the benefit of the plea that the money was not counted and
received, I, the above-named debtor, have hereby agreed and bound myself to pay
the said principal sum, together with interest accruing thereon, at the rate of
30 per cent, per annum from the date hereof till payment on demand of the
above-named creditor or his heirs, &c, and for security the payment of the
above-mentioned principal sum and interest accruing thereon, I have mortgaged
and hypothecated, as a first or primary mortgage to and with the said creditor
and his afore-named heirs, the property described and mentioned in the schedule
hereunder which is free from all encumbrances, such, as security and mortgages
with all its appurtenances, as well as all my right, title, and interest in and
to the. same.
And for the due fulfilment of the above set out agreements I, the debtor above
named, for and on behalf of myself, my heirs, &c, are hereby further held and
bound.
The Schedule above referred to.
The undivided 1/3 part which I, the debtor, hold and possess by right of paternal inheritance of the trees and of soil of the lands Disawagewatta and Weragodayawatta, both adjoining each other and formin'
one land, in extent about 5 acres, situated at Gabadawedia a
