148-NLR-NLR-V-02-SAMARANAIKE-v.-SAMARAWEERA.pdf
( 368 )
1807.May 2P.
SAMARANAIKE v. SAMARAWEERA.
D. C., GaOe, 2,847..
Action on mortgage bond—Sale by mortgagor of mortgaged land■—■Nature ofdecree.
Where a mortgagor has sold to a third party the land mortgaged,the mortgagee, in a suit against the mortgagor only, is not entitledto a decree for the sale of the land in execution, but to a moneydecree only for the debt due on the bond.
facts of the case appear in the judgment of Lawbie, A.C.J.
Peiris, for appellant.
Van Lartgenberg, for respondent.
20th May, 1897. Lawbie, A.C.J.—
The deceased Alexander Theadore Weerasuriya and his wifeexecuted a joint will dealing with all the property in communionand giving to the survivor a life rent of the lands. After his wife’sdeath Weerasuriya purchased Madangahawatta and executed amortgage over it and over Moragastuduwawatta, of which he had alife rent under the joint will. After his death the executor in thewill took probate, and was also appointed administrator of the estateof Weerasuriya acquired after the joint will with regard to whichhe had died intestate. His debts were considerable, and theoxecutor-administrator sold the lands which belonged to his deceased,and we are told that some money is in deposit. The mortgageebrought action on the mortgage against the executor, and aftersome litigation, which it is not necessary to refer to, the learnedDistrict Judge gave judgment against the executor for the amountdue on the mortgage to be paid out of the assets of the mortgagor’sintestate estate, and in default of payment he ordered that Madan-gahawatta be sold and the proceeds applied to, in, and towards thepayment of the sum claimed. Now, it seems to me, that as Madan-gahawatta has been sold by the executor-administrator the Courthas no power in this action to order that land to be again sold, andthat so much of the decree as directs the sale should be deleted. Itmay be that the mortgagor has a right to get a hypothecary decreein an action against the prepent owner, who is no party to this suit.In such a hypothecary action the1 order to sell would properly bemade in the present suit. All that the plaintiff can get as againstthis defendant is a money decree for the debt due. No costs of thistappeal.
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WllBEBS, J.—
I agree in the modification proposed by my brother in thisjudgment. >
That part of the decree ordering the re-sale of the property mustbe deleted. It has already been sold and the proceeds brought intoCourt—so we are informed.
1897.
May 20*