Antonio Assaf V. Daniel Olatunji Fuwa And Others (1954)

LawGlobal Hub Judgment Report – West African Court of Appeal

Contract for sale by mortgagor of mortgaged properties—Subsequent sale bymortgagor to second purchaser who paid mortgagees amount secured withoutobtaining a reconveyance—Equitable priorities of purchasers—Circumstancesin which mortgagees hold legal estate in trust for purchaser.

Facts

The facts are fully set out in the judgment. A mortgagor having twice sold mortgaged property, the issue before the Board was which of the purchasers had priority, having regard to the fact that the second purchaser repaid to the mortgagees the amount secured by the mortgagee but obtained no reconveyance. The West African Court of Appeal decided that the second purchaser had priority as the mortgagees held the legal estate in trust for him.

Held

The strict temporal order of priorities applied, unless in addition to the mortgagor’s act in redeeming or its equivalent, some positive act by the mortgagees operating in favour of the claimant- was proved. In this case there was no positive act by the mortgagees creating a trust in favour of the second purchaser (the respondent). Accordingly the appellant’s title prevailed.

Appeal allowed.