Singer Sewing Machine Company V. Haniffa

1925 Present: Garvin J.

SINGER SEWING MACHINE COMPANY v. HANIFFA.

190-C. R. Colombo, 18,657.

    Landlord and tenant-Exercise of lien--Goods bought by the tenant on the hire-purchase system-Sale in execution.

A landlord is entitled to exercise his lien for non-payment of rent over property obtained by the tenant under the hire-purchase system.

Where such property was purchased by the landlord under sale in execution against the tenant his title is not limited to the interest of the tenant in the property.

ACTION by the plaintiffs to be declared entitled to a Singer sewing machine as against the defendant. The plaintiffs, who were the owners of the machine, delivered it to one O. F. de Zilva on the hire-purchase system. Zilva paid the instalments for three months and then made default. Meanwhile the defendant, who had sued Zilva for arrears of rent, seized the machine in execution of his writ, caused it to be sold by the Fiscal and purchased it. The learned Commissioner of Requests dismissed the plaintiffs' action.

H. V. Perera, for plaintiffs, appellant.

Croos Da Brera, for defendant, respondent.

November 3, 1925. GARVIN J.-

The facts material to this appeal are not in dispute. The plaintiffs delivered a Singer sewing machine to one O. F. de Zilva on what is known as the hire-purchase system. Zilva paid the instalments due for three months and then made default. In the meantime his landlord, the defendant, who had sued Zilva for arrears of rent, seized the machine in execution of his writ, caused it to be sold by the Fiscal, and purchased it himself. In this action the plaintiffs are seeking, as against the defendant, a declaration that the machine is their property. There can be no doubt that the plaintiffs were the owners of the machine, and that Zilva had not at the time of the seizure and sale by the defendant acquired a title to the machine. The defendant, however, contends that the machine was subject to the lien for rent which he as landlord was entitled to exercise, that he did exercise his rights by causing the same to be seized and sold and that any defect of title in Zilva has thus been cured. It has been strongly urged that the sewing machine was not subject to

the landlord's lien. The terms of the agreement were carefully analysed, and counsel endeavoured to draw a distinction between this agreement and certain other agreements, in the case of which it has been held that the property delivered under those agreements was subject to the lien. The lien of a landlord ordinarily applies only to the property of his tenant, but it extends to the property of third persons where the property has been taken into the hired premises with the consent of their owner with a view to being kept there permanently for the use of the tenant (see Voet 20, title 2, s. 5). The foundation of this rule in so far as it affects the property of third persons is said to be that, if an owner allows his property to be on such premises, he is taken to have tacitly consented that it should be subject to the landlord's lien for unpaid rent {vide Wille, Landlord and Tenant 378).

This presumption may, of course, be rebutted by proof of an express declaration by the owner of the goods to the landlord that he had not consented to his property being subject to the landlord's lien, but there is no evidence in this case of any such declaration. It remains, therefore, to consider whether the circumstances of this case justify the conclusion that this machine was brought on to the premises of the tenant with the consent of the owner to remain there " permanently " and for the use of the tenant. That the machine had been taken on to these premises with the consent of the owner and for the use of the tenant is beyond question. The contention on behalf of the plaintiffs would seem to be that having regard to the terms of this agreement it cannot fairly

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