Webster v Ellison

• Jurisdiction: South Africa

Webster Appellant v Ellison Respondent
1911 AD 73

1911 AD p73

Citation	1911 AD 73
Court	Appellate Division, Bloemfontein - Cape Town
Judge	Coram Lord De Villiers CJ, Innes J, Solomon J, CG Maasdorp JP and J De Villiers JP
Heard	January 10, 1911
Judgment	February 6, 1911

Flynote : Sleutelwoorde

Landlord and Tenant — Rent — Tacit Hypothec — Attachment — Removal of invecta et illata — Quick pursuit — Mobilia non habent sequelam.

Headnote : Kopnota

The respondent, being the lessor of a farm in respect of which rent was owing by the lessee, discovered that certain sheep which were subject to his tacit hypothec had been removed to a neighbouring farm by the appellant (its owner) who had bought the sheep without knowledge that rent was overdue. It was held by the Natal Provincial Division that such lessor, who applied for attachment of the sheep within two days after such discovery, was entitled to an Order of attachment, inasmuch as he had followed up the removed property with sufficient celerity: - Held, that, in the absence of any fraud or collusion on the part of the appellant, the sheep could not be attached, after they had been removed to his farm.

To render the landlord's tacit hypothec effectual it is necessary that the goods should be attached, and the general rule is that the attachment must take place while the goods are on the leased premises. It, however, the goods have been taken away, they may still be attached while in the process of removal, unless they have been already delivered to a third person, who acquired them for value without notice of the landlord's claim.

The decision of the Natal Provincial Division reversed.

Case Information

Appeal from the decision of the Natal Provincial Division (DOVE-WILSON, A.J.P., BROOME, J., and HATHORN, J.), sitting as a Court of Review.

1911 AD p74

The respondent Ellison was the owner of a farm in Natal of which one Ruiter was the tenant. Some 300 or 400 sheep, the property of one Price, had been running on the farm for nearly a year under an agreement with Ruiter, by which the latter was entitled to half the increase. In August, 1910, Ruiter owed the respondent £91 as rent for the farm. On August 6th, Price sold the sheep to the appellant Webster, who removed them on that day to his adjoining farm.

The respondent got to hear of this on August 8th; on August 9th he proceeded to the spot to verify the facts, and on August 10th he made an ex parte application to the Magistrate of the Division of Klip River for an order interdicting Ruiter, Webster, or any other person from parting with or disposing of the sheep until further order, the interdict being applied for in order to preserve the landlord's hypothec over the sheep.

The Magistrate granted the interdict, such interdict to operate as an attachment of the sheep by the Messenger of the Court.

Application was thereafter made to the Magistrate by Webster, on notice to Ellison, for the setting aside of the interdict and attachment, and on August 26th these orders were set aside with costs. The Magistrate in his reasons, stated that he had set aside the interdict because he was of opinion that it had been applied for too late, and it appeared to him that the plaintiff (Ellison) had not followed up the matter quickly enough.

The matter was then brought before the Natal Provincial Division by summons for review. DOVE-WILSON, A.J.P., in his judgment, stated that, it being admitted that the sheep while on Ellison is farm were subject to the landlord's hypothec, the decisions of the Natal Courts laid it down that that hypothec was preserved if the landlord pursued the goods with sufficient celerity. In such case the goods were regarded as being still on the landlord's premises, and any right to them acquired by third parties, even if acting bona fide, did not affect the matter. In this case there had been no delay, there had been quick pursuit, and the landlord, therefore, retained his hypothec.

1911 AD p75

BROOME, J., and HATHORN, J., delivered concurring judgments, and the Natal Provincial Division made the order, "The appeal will be allowed, and the order discharging the attachment will be set aside, with costs in both Courts."

Webster now appealed, leave being granted by the Appellate Division (Webster v Ellison [1910] AD 299).

Janion, for the appellant: The authorities are all against the doctrine of "quick pursuit," Stranack and Co. v Estate Welch (9 N.L.R., 137), Walker v Funwayo (9 N.L.R. 206), Hall v Welkom (6 N.L.R. 73), Houghting v Lloyd (27 N.L.R. 94). In Badcock v Skeen's Trustee (5 N.L.R. 192) the goods were still in course of removal.

Regard should be had to the date of actual removal and not to the time when the landlord knew of it. As soon as the landlord has lost possession his lien is lost: Grotius, Introd. (2, 48, 17); Voet (20, 2 3); Van der Keessel, Thesis 423, In re Stillwell (1 M. 537), In re Price (3 Juta 139), Warren v Clements (1 C.T.R. 287), Dommisse v Theart (4 Juta 92), Reed v Buckley (7 E. D.C. 12) Bushing v Kinnear (5 H.C.G. 264), Greeff v Pretorius (12 S.C.R. 104), Alexander v Burger (1905, T.S. 80), Savory v Baldochi (1907, T.S. 523), Symons v The Messenger (1909, T.S. 749).

Even if the doctrine of quick pursuit is to be upheld in Natal, it should not be extended so as to prejudice the rights of third parties who have purchased bona fide for value.

Taylor (with him J. J. Bisset), for the respondent: Badcock's case was decided on the Roman-Dutch authorities. The Natal cases already quoted establish the doctrine of "quick pursuit." See also Sparks v Moosajee (5 N.L.R. 59), Board of Executors v Stigling (Buch. 1868, p. 25), and Loft v Briggs (Natal S.C., 15th April, 1910).

[LORD DE VILLIERS, C.J.: Do any of these cases go so far as to say that the doctrine will be applied against bona fide third parties? They all appear to be decided without reference to that question.]

1911 AD p76

That is so. The doctrine is in accordance with Roman-Dutch Law. See Grotius Introd. (2, 48, 17). Schorer in his note (250) on this passage, extends the case to where the goods have come into the hands of a third party.

[LORD DE VILLIERS, C.J.: Would you put the landlord in a better position than a pledge with delivery is in: Grotius 2.48.29?]

Yes, because in this case there is a fiction of law, and the landlord is entitled to all the benefits of the facts assumed by such fiction. Even without a finding of fraud, the rule applies to a removal from one tenement to another. Groenewegen de leg abr. (ad. Dig. 20, 2); Van Leeuwen R.D.L. (4, 13, 12); Cens. Forensis (1, 4, 9, 4); Matthaeus Paroem. (7, N. 13); Wassenaar Jud. Prakt. (22.62); Pothier Contrat de Louage (Art. 3, sects. 257, 261); Bell's Princ. of Law of Scotland (par. 1242).

In In re Price (3 Juta 139) the doctrine was not adequately discussed, and later cases followed In re Price without full argument, except McClelland's case (9 H.C.G. 22). In Currie v Kessack (1904 T.H., 6) the point was left open.

As to the rights of third parties: a holder under a notarial bond cannot defeat the landlord's lien, and a purchaser should not. The rule mobilia non habent sequelam should not be applied too widely, Turner v Colville (4 N.L.R., 8), Wessels Hist of R.D. Law (ch. 7, P. 502). Knowledge of a pledge vitiates the title of a purchaser, Coaton v Alexander (Buch. 1879, p. 17). Webster was not a bona fide purchaser. The sale was very hurried. He must have known that the sheep were on a hired farm, and, therefore, subject to hypothec. If mala fides has not been proved, the matter might be referred back for affidavits on the point.

The attachment was as quick as could be expected in the circumstances. Even if authority is against us, the Court will not upset a long series of decisions in Natal. See Broome's Legal Maxims, 7th Ed., p. 112, s v "Communis error facit jus" and Dalton v Angus (L.R. 6, A.C., at p. 812).

1911 AD p77

[LORD DE VILLIERS, C.J.: But there is no series of Natal decisions to show that quick pursuit applies against third parties, extending over a large number of years.]

That is so, but the decisions cover quick pursuit as against the tenant himself.

[INNES, J.: Do you want us to lay down one rule for Natal and another for the rest of the country?]

The upsetting of the law of property and of letting and hiring is worse than diversity of law. If the law is to be upset it should be by Statute.

Janion, in reply: The authorities do not go so far as to allow the landlord to follow goods into the hands of third parties. See Van der Keessel (Thesis 453) and Grotius (2, 48, 29). The record contains no statement pointing to mala fides. As to the effect of case law, see Hardcastle on Statutes (3rd Ed., pp. 16, 94).

[LORD DE VILLIERS, C.J.: Under the South Africa Act each Province retains its own law. If by a series of decisions this principle has hardened into law in Natal, can we now upset it?]

It has had less than one-third of a century to harden, and is not yet sound law in Natal.

Cur. adv. vult.

Postea, at Cape Town, on February 6th.

Judgment

Lord De Villiers, C.J.:

The respondent is the owner of a farm in Natal, to whom one Ruiter in August last owed £91 as rent, under a twelve months' lease. Running on the farm were certain sheep belonging to one Price, which he had placed in charge of Ruiter under an agreement entitling the latter to half the increase thereof. On the 6th of October, Price sold the sheep to the appellant, who removed the same to his adjoining farm. On the 8th of August the respondent heard a rumour that the sheep had been removed from his farm, and on the following day he went to the farm, and ascertained that the sheep had been removed to the adjoining farm. On the 10th of August, the respondent obtained from the Resident Magistrate of Ladismith an order for

1911 AD p78

Lord De Villiers, C.J.

the attachment of...