James W. H. Lisk V. Rogers C. P. Barlatt (1938)
LawGlobal Hub Judgment Report – West African Court of Appeal
Claim for Possession of Land and Mesne Profits sold under Mortgage before event giving rise to power of sale thereunder Appealhad arisen.
Held: Appeal therefore allowed, but appellant, having succeeded on
judgmenta point not raised in the Court below, deprived of his costs in the Court
Court.The facts are sufficiently set out in the judgment.
S. .1. Barlatt for Appellant.
R. B. Marke for Respondent.
The following joint judgment was delivered :—
KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST, AND WEBB, C.J., SIERRA LEONE.
This is an appeal against a decree in favour of the respondent for the possession of the premises known as No. 5 Kissy Road and for mesne profits. The respondent’s title is based upon a conveyance made on the 1st April, 1936, by one Alfred Augustus Cole in exercise of the power of sale contained in a mortgage of the premises to him made on the 20th January, 1933, by Samuel Barlatt, Rogers Barlatt (the defendant and appellant), Annie I4ewis and George Lewis. The mortgage was expressed to ?be made
in consideration of the sum of £600 to be paid by the mortgagee to the mortgagor Samuel Barlatt of which the sum of £300 hath this day been paid by the mortgagee to the said Samuel Barlatt ” (receipt acknowledged), and it contained a proviso for redemption ” if the said Samuel Barlatt his heirs executors shall at the end of three years from the date of the payment of the loan by the mortgagee to him repay to the mortgagee the amount loaned to him by the mortgagee with interest thereon . . . . “. The power of sale contained in the mortgage (so far as is material) is as follows :— ” and it is hereby agreed that it shall be lawful for the mortgagee his heirs executors administrators and assigns at any time after expiration of the time due for repayment of the said loan ‘t, sell the lands and hereditaments hereby mortgaged it’
The balance of the mortgage money was advanced in three payments, £50 on the 16th April, 1933, £100 on the 29th April. 1933 and £150 on the 24th June, 1933. It is therefore obvion.
that, when the premises were sold by the mortgagee on the 1st James April, 1936, the event giving rise to the power of sale had not W. H. occurred, though this point was not taken in the Court below, Lisle where the case proceeded on the mistaken assumption that the due v•
date for repayment was the 20th January, 1936 and not the 24th It‘lgera
In these circumstances it is argued that .the purchaser from
the mortgagee is protected by the provisions of the Conveyancing Kingd“, Acts of 1881 and 1911. But, as is pointed out in the judgment retridee under appeal, ” under the provisions of these Acts the purchaser Webb, is exempted from any duty to make inquiries and provided he has
had no notice of any irregularity, he is protected notwithstanding that an event giving rise to the power of sale has not occurred. He can claim no protection if he has received notice of the irregularity.” This corresponds to the statement of the law in Halsbury, 2nd Ed. 23, 441, para. 649. But here the conveyance under which the respondent claims recites the mortgage, including the dates upon which the loan was made, and therefore he must be taken to have known that repayment of the mortgage money was not yet due at the date of the sale to him. The case is even stronger than– Selwyn v. Garfit (38 Ch. D. 273) because there the invalidity of the sale depended upon the question whether the notice demanding payment required by the terms of the mortgage could be given before the date upon which repayment was due; but here the fact that repayment was not due until the 24th June is patent upon the fact of the conveyance. In Selwyn v. Garfit, Kay J. said (at p. 279) ” Mr. Sudbury must be taken to have known perfectly well that the notice he gave was not a notice which could possibly produce three months’ default at the time when the sale was completed. And, further, even if that were not so, Mrs. Garfit must be taken to have been perfectly aware of the contents and purport of the deed under which she bought, because the power of sale was the title of the person selling to her.”In the circumstances we must hold that the sale to the respondent was invalid, and the decision of the Court below must be reversed and the action dismissed. As, however, the appellant has succeeded on a point which he did not raise at the trial, the order as to costs will be that the respondent must pay the appellant his taxed costs in the Court below and that each party shall abide his own costs of the appeal.