Sutter v Scheepers

• Jurisdiction: South Africa
• Judge: Wessels JA, Curlewis JA and Roos JA
• Judgment Date: 22 March 1932
• Citation: 1932 AD 165
• Hearing Date: 09 March 1932
• Court: Appellate Division

Wessels, J.A.:

This is an appeal from the O.F.S. Provincial Division. The plaintiff in the court below claimed provisional sentence for the sum of £800 with interest and costs on a third mortgage bond registered against the farm Weldaad. The bond was passed by the owner of Weldaad, one Jozua Scheepers, in favour of one Ellenberger, an attorney practising at Bethlehem, O.F.S. Who ceded it to the plaintiff. The defendant And his wife appear as parties to this bond. The bond purports to hypothecate their usufruct over the farm Weldaad and also to bind them jointly and severally, to pay the amount of Jozua Scheeper's indebtedness to Ellenberger. The defendant resisted the claim on two grounds - (1) that when the power of attorney, upon which the bond in

Wessels, J.A.

question was executed, was signed by the defendant it did not contain any particulars as to what was hypothecated and what liability was incurred by the respondent. It was signed in blank and given to Jozua Scheepers under the distinct understanding that he was only to hypothecate the life usufruct of defendant and his wife and not to bind him in any further way. Jozua Scheepers fraudulently authorised the conveyancer to insert a clause that the defendant and his wife were to be jointly and severally liable for the debt. It is contended that the conveyancer, who is a clerk of Ellenberger's, had no right to insert this clause without referring to defendant and that therefore the latter is not liable under the bond. (2) The second defence is based on the fact that the power of attorney to pass the bond for £800 was not properly attested and therefore not valid.

In order to appreciate these defences it is necessary to give a brief sketch of the history of the bond sued upon in 1924 the defendant J. J. Scheepers transferred the farm Weldaad to his son Jozua whilst he and his wife retained a life usufruct in the farm. Soon after this Jozua borrowed £1,000 and bonded the farm Weldaad for this amount. The defendant and his wife allowed their usufruct to be hypothecated for the debt, and moreover bound themselves jointly and severally to repay the amount. The bond was passed by virtue of a power of attorney executed by J. J. Scheepers in favour of one Daniels, a conveyancer at Bloemfontein. In. February, 1924 a second bond for £200 was passed with similar conditions by virtue of a power of attorney granted to one Daniels and one van de Wall. These bonds were cancelled in January, 1927 and two new bonds were substitute, a first mortgage bond for £1,750 and a second for £700. In March, 1927 a third bond was passed for £650. Mr. George F. Smidt declares that the powers of attorney by virtue of which these bonds were passed were not signed by J. J. Scheepers in blank, but were fully completed before they were handed to Jozua Scheepers. There were two sets of powers. In the power to pass the second bond the name of Jozua Scheepers was spelt wrongly and was consequently rejected by the Registrar of Deeds. This power was then replaced by a fresh power fully completed before it was signed. It was handed to Jozua Scheepers to take to his father and mother so that the latter could sign it. This fresh power, in addition to requiring the mortgagors to renounce the legal exceptions, also

Wessels, J.A.

made provision specifically that defendant was to be jointly and severally liable for the debt. The power to pass the bond for £650 was not sent in blank but was also complete in all details, and it also bound the defendant jointly and severally. In March, 1927, therefore, J. J. Scheepers was or ought to have been, fully aware that he had hypothecated his usufruct and that he was liable for Jozua's debt both jointly and severally.

Jozua Scheeper's financial affairs grew from bad to worse, and towards the end of 1929 he required more money. It was then arranged that the bonds for £1,750, £700 and £650 should be cancelled and that for these should be substituted bonds for £2,700, £500 and £1,250, all hypothecating the nude ownership of Weldaad and the usufruct of J. J. Scheepers and his wife, and all containing a clause that J. J. Scheepers was jointly and severally liable on the indebtedness of Jozua Scheepers. Mr. Walker, a fully qualified conveyancer who was also a clerk of Ellenberger, was entrusted with this business. Some time in August Jozua asked Walker to give him three powers of attorney so that he could have them signed by his father and mother in order to pass the new bonds. Walker handed him three printed forms in which the details were not set out and which I shall call blank powers. Jozua later on brought the three powers back signed by J. J. Scheepers and authorised Walker to fill in the amounts as £2,700, £500 and £1,250 respectively. On the 19th September Jozua returned and pointed out that the amount of £1,250 was incorrect, that it should be £750. Ellenberger agreed to this and also promised to give Jozua an extra £50, making the amount of the third bond £800 in all. This necessitated a new power. Walker thereupon handed Jozua another such blank power with pencil...