Verity, C.J. These are cross appeals in an interpleader suit in which the claimants sought the release from attachment of certain property seized in execution at the instance of the judgment-creditor. The property to which they laid claim included a number of lorries, trailers and sundry spare parts, and a certain plot of land situate at Kumasi.
The learned Judge who heard the suit held that as regards the lorries and trailers the judgment-creditor was entitled to seize and sell the judgment-debtor’s interest in them subject to the claimants prior mortgage on them. He held in regard to the spare parts that the judgment-creditor was entitled to seize them in execution subject to the prior equitable charge upon them in favour of the claimants. In regard to the land he dismissed the claim.
Against this decision in regard to the land the claimants appealed and the judgment-creditor brought a cross-appeal in regard to the lorries, trailers and spare parts. Owing to the absence of any rule of this Court requiring an appellant to indicate whether he appeals against the whole judgment or only part thereof the notice of appeal would appear to show that each party appealed against the whole judgment, but the grounds of appeal and the argument of Counsel show that the nature of the cross-appeals is as we have stated.
Dealing firstly with the claimant's appeal relating to the land, their claim was based upon an undertaking entered into by the judgment-debtor on 28th November, 1946, whereby in consideration of a sum of money then due by him to Barclays Bank being paid by the claimants the judgment-debtor undertook to request the Bank to hand to the claimants as security the title deeds of the land at Kumasi, to deposit the title deeds of other properties, and to execute a proper legal mortgage of all these lands, and further to execute a formal Bill of Sale of the lorries, trailers and spare parts which are the subject of the cross- appeal. The judgment-creditor resisted the claim in so far as the land at Kumasi is concerned on the ground that the undertaking amounts to an equitable mortgage which has not been registered by the Commissioner of Lands and that by reason of section 22 of the Kumasi Lands Ordinance, 1943 (No. 17 of 1943), no equitable mortgage shall be of effect until so registered. The learned trial Judge upheld this contention and therefore dismissed the claim.
It is argued before us that although the transaction is of no effect as an equitable mortgage until registered, the statutory restriction upon its effect does not make the transaction null and void and does not extinguish any equities the transaction may have conferred upon the claimants as distinct from the estate conferred by the equitable mortgage. Counsel submitted that the transaction is one whereby the claimants, as creditors of the judgment-debtor, paid his debt to a third party in redemption of the equitable mortgage held by Barclays Bank and thereby acquired a lien on the property which ranks in priority to the claims of the judgment-creditor. On behalf of the judgment-creditor it is argued that, although the equitable mortgage evidenced by the undertaking of the 28th November coupled with deposit of title deeds is of no effect until registered, the payment to the Bank was in fulfillment of a contractual obligation in consideration of which the judgment-debtor undertook to give security and that no equitable lien arises. It is open to question as to whether in the circumstances a lien ever arose. By the undertaking of the 28th November the judgment-debtor agreed to charge this land. Upon the general principle as stated in Coote’s Law of Mortgages, 9th Edition, page 80, that an agreement in writing by which any property real or personal is to be a security for a sum of money owing or advanced is an equitable charge, it would appear that the signing of the undertaking in itself constituted an equitable mortgage, in which case no equitable lien would arise from the subsequent payment of the moneys due to the Bank. Assuming, however, that in such circumstance a lien would arise the submissions of Counsel should receive consideration.
We agreed with the submission of Counsel for the claimants that the provisions of section 22 of the Ordinance do not destroy the equitable mortgage nor rend it null and void. They do no more than defer its effect till registration. It was open to the claimants to avail themselves of it as effective security at any time by causing it to be registered. We agree further, that the fact that the payment to the Bank was in accordance with the contract between the parties does not necessarily negative the creation of an equitable lien such as would protect him until security was given. The question arises, however, as to whether, once security had been given by way of equitable mortgage the claimants must be deemed to have waived the lien and substituted such security therefore. This question was dealt with in Re Taylor, Stileman and Underwood (1) in which a similar point arose in relation to a solicitor's lien and in which Lord Justice Lindley said:-
“In considering this point we must be careful. Whether a lien is waived or not by taking a security depends upon the intention expressed or to be inferred from the position of the parties and all the circumstances of the case.”
Lord Justice Lopes observed:- “It appears to me that in each case the question whether the lien is waived by taking security must be decided according to the particular circumstances. I do not mean to say that taking a security necessarily imports an abandonment of the lien; but if there are circumstances in the taking of the security which are inconsistent with the continuance of the old security it is to be inferred that the solicitor intended to abandon his lien.
In that case the security taken by the solicitor consisted of a promissory note payable on demand and bearing interest, the husband of the client joining therein and the Court of Appeal held that in these circumstances the only fair inference to draw was that there was an intention between the parties to give up the old security and to rely upon the new.
Now in the present case the circumstances giving rise to the lien was the payment to the Bank in order to redeem the plot of land at Kumasi upon which the Bank held an equitable mortgage. There can be no doubt that the lien was, secured upon that plot of land only and could not be enforced as against any other properties of the debtor. By the undertaking of the 28th November however, the debtor agreed to give, and did in fact subsequently give, further security, that is to say an equitable mortgage not only upon the land at Kumasi but also upon other lands and further undertook to execute a legal mortgage upon all these properties not only to secure the sum paid to the Bank but also other debts due by him to the claimants, and further to execute a Bill of Sale on certain chattels to secure a further sum.
We are of the opinion that the fair inference to be drawn from these facts is not that the parties intended that the old security by way of lien should be continued but that this lien limited to the Kumasi lands should be abandoned and there should be substituted therefore the equitable mortgage created by the undertaking, coupled with the deposit of title deeds, and ultimately to be succeeded by a legal mortgage and Bill of Sale which would include security for further indebtedness. This amounts, in our view to a waiver of the lien once the new security has been given. This security was in fact given when an equitable mortgage arose from the deposit of the title deeds, coupled with the covenants to execute a legal mortgage and Bill of Sale. We are fortified in our view that there was an intention to abandon the lien, by the conduct of the claimants in the present proceedings. There are no pleadings but from the affidavit of F. Khoury it is clear that they rested their claim upon their rights under the undertaking of the 28th November while in the addresses of Counsel in the Court below the claim. is based upon the equitable mortgage comprised in the deposit of deeds in conjunction with the undertaking. No suggestion that the claimants relied upon the lien is apparent from the proceedings in the Court below and in our view this confirms the conclusion to be drawn from the immediate circumstances that it was the intention of the parties that the lien should be abandoned. Once abandoned, no authority has been cited to us nor have we been able to refer to any for the proposition that the lien can be revived by the mere fact that the claimants have placed themselves in the position of being unable presently to avail themselves of what is admittedly a good and valid security by their failure to register the same. We are of the opinion, therefore, that the learned trial judge rightly dismissed their claim, for having abandoned their lien and being unable to give effect to their equitable mortgage they have no presently effective estate or interest in the land.
It was further submitted by Counsel for the claimants that the judgment- debtor by reason of the existence of the equitable mortgage is in possession of the land as trustee for the claimant mortgagees. It is apparent that, in view of our finding that the lien was abandoned, the sole interest of the claimants in respect of which the judgment-debtor could be deemed to hold possession as a trustee for them arises from the equitable mortgage, but as failure to register the same precludes any effect being given thereto it is impossible to sustain their claim on this ground.
In our opinion the learned judge was right in dismissing the claim in respect of the Kumasi land, and the claimants’ appeal is dismissed.
Turning now to the cross-appeal relating to the lorries and trailers, it appears that on the 16th November, 1946, the judgment-debtor entered into an agreement in writing with the judgment-creditor whereby the latter agreed to lend the former a sum of money to be secured in the manner therein appearing, that is to say, if the borrower made default in payment thereunder the lender should be at liberty to sue the judgment-debtor for principal and interest or in the alternative he might require the borrower to transfer to him the lorries and trailers the subject of the present claim. In view, however, of the restrictions placed upon the sale and purchase of such motor vehicles by the Defence (Control of Transfer of Used Motor Vehicles) Order, 1943, it was provided that such transfer should be subject to the approval of the Competent Authority under the Order. The agreement further provided that, in case of default in payment, the lender might seize the vehicles, giving notice to the borrower as to whether he desired to exercise the right of transfer, and the clause further provided that it the Competent Authority did not approve of such transfer, or if the lender did not desire to exercise his right of transfer, he might nevertheless retain possession of the vehicles until the sum due by way of principal and interest should be paid or until execution should be levied thereupon consequent upon any judgment obtained by him against the borrower in respect of default under the agreement.
The judgment-debtor made default in payment under this agreement, the , Judgment-creditor sued, obtained an order for interim attachment, proceeded to judgment, and issued execution against the vehicles, which were attached I under a writ dated 24th December, 1946, and which are the subject of the present claim for release.
It appears, however, that on the 22nd November, 1946, six days after the date of his agreement with the judgment-creditor, the judgment-debtor executed a document described as a Bill of Sale whereby he assigned to the claimants, inlet' alia, the vehicles which were the subject of his agreement with the judgment- creditor, to secure payment of a large sum in which he was indebted to the claimants.
In the Court below the judgment-creditor contended that this Bill of Sale was' avoided by virtue of the Statute of 13 Eliz. c. 5, but the learned judge found against him on this contention and with this finding the judgment-creditor does not express himself as being dissatisfied in this appeal. It was contended further, however, that the document is void by reason of its being in breach of the Defence Order of 1943 to which we have before referred, in that it purported to transfer the property in used motor-vehicles without the permit required by that Order. The learned Judge, while observing that the Order defines “sale” as including “any transfer of the property in a used motor-vehicle” and “purchase” as including “ any acquisition of property in a used motor-vehicle”, held that on consideration of the whole order it appeared only intended to cover outright sale, and he concluded that a mortgage is not such a transfer as is void e by lack of permit. He therefore deferred the rights of the judgment-creditor in execution to the prior mortgage held by the claimants.
Counsel for the judgment-creditor submitted in the first place that the so- called Bill of Sale was not effective as such in the Gold Coast by reason of the fact that the Bills of Sale Acts, 1854 and 1866, are not applicable, not being Acts of general application such as would be effective here by reason of section 70 of the Courts Ordinance (Cap. 4). It appearing, however, that the document in question might nevertheless have been effective to create a mortgage of chattels at Common Law in England prior to the enactment of the Bills of Sale Acts, he 4 contended, though we cannot conceive seriously, that the Common Law applicable in the Gold Coast is that in force in England on 24th July, 1874, and that, as the common Law in England as to mortgages of chattels had before that date been altered by the enactment of the Bills of Sale Acts, 1854 and 1866, the Common Law as it was effective in England prior to those Acts was no longer applicable in the Gold Coast. We are unable to uphold any such contention. It is sufficient to say that, in our opinion, the words “in force on the 24th July, 1874”, are referable to statutes of general application only and not to either the Common Law or the doctrines of equity. Assuming, however, for the purposes of argument that the Bill of Sale is a valid and effective mortgage of chattels at Common Law, Counsel for the judgment-creditor contended that the agreement entered into between the judgment-creditor and the judgment-debtor on the 16th November, 1946, is also a Common Law mortgage of chattels, that the effect thereof is identical with that of the claimants’ Bill of Sale and that the sole method of determining the priority of two documents of like legal effect is by reference to their date. He contended, therefore, that the learned Judge erred in giving preference to the claimants' Bill of Sale which was later in time. Should it be necessary to determine the relative effect of these documents, the arguments of Counsel on this point are worthy of consideration, but the main contention of the judgment-creditor is that the claimants’ Bill of Sale is void by reason of the provisions of the Defence Order of 1943 and is therefore of no effect at all.
This Bill of Sale purports to assign the used motor-vehicles which are its subject matter, the effect of which, if valid, is to transfer to the claimants the property therein. If, therefore, such transfer falls within the provisions of the Order it is contrary thereto having been effected without the permission there prescribed as condition precedent to legal transfer. In such case it is an illegal transfer and is void and of no effect.
Now the Order declares that the words “sale “ and “ purchase” as used there in shall include “any transfer” or “any acquisition” of the property in used motor-vehicles. As it is admitted, indeed it is the basis of the claim, that the Bill of Sale effects a transfer of the property in the motor-vehicles to the claimants it would appear prma facie that it falls within the terms of the Order. The learned Judge held, however, and it was forcibly argued before us, that on consideration of the whole of the Order it is found that it is intended to cover only outright sales, that the word “property” in the Order must be construed to mean the whole property and that as the “property” transferred by the Bill of Sale is not the whole property” but is limited by the transferor’s right to redeem, it is not within the Order.
In support of this contention Counsel referred to the intention of the Order as appears from its terms, with more particular reference to the amending Order of 1944 and to the forms of application and of permit prescribed by the Orders. It is true that the forms refer exclusively to the “Vendor “and the” Purchaser”, that the Competent Authority is given power to determine whether the transfer is essential or desirable, and that by the amending Order he is given power to fix the price at which the vehicles shall be sold. It is submitted that these provisions show that the intention of the Order is to control such transfers as are ordinarily connoted by the word “sale”, that is to say the transfer of property and possession absolutely to the purchaser in consideration of a purchase price. There is much force in this contention, though it must not be assumed that the word “sale” in itself always connotes no more than such a transfer. In Bennett v. Wyndham (2), in an action relating to the raising of certain charges by trustees “except by sale or sales”; the Master of the Rolls said:-
“I think the word ‘sale’ expressly excludes the possibility of raising it by sale of any portion of the estate, and I think the word ‘sale’ virtually includes within it the word ‘mortgage’, which is practically a sale and which cannot be resorted to without giving the mortgagee the power of getting possession of the estate if the charge is not paid off when required.”
How much the more careful should the Courts be in limiting the meaning of the word “ sale” where the statute or order prohibiting sales, save under certain conditions, explicitly declares that a “sale” for the purposes of the Order shall include “any transfer of the property “ in the articles the subject of the transfer.
In considering the object of the Order for the purpose of ascertaining precisely what “transfers of the property” were intended to be covered, it must be borne in mind that the original Order made no reference to the control of the purchase price. It is apparent that at that time the purpose of the Order was to enable the Competent Authority to control the transfer of the property in used motor- vehicles in accordance with his conclusion as to whether such transfers were essential or desirable in pursuance of the purposes of the Defence Regulations under which the Order was made, that is to say, the due prosecution of the war and other purposes related thereto. The fact that in the following year the Competent Authority was further empowered to fix the price at which vehicles were to be sold in no way detracts from the powers originally conferred upon him or the object of those powers. We would agree that in so far as the additional powers of the authority to fix the purchase price are concerned they are only capable of being exercised in relation to a sale in the ordinary meaning of that word, but it does not necessarily follow that other powers conferred by the Order for different purposes are to be so limited, nor do we think that the fact that the forms prescribed in the Order do not appear wholly applicable in all circumstances necessarily limits the construction that is to be placed upon either the object or terms of the substantive Order.
It appears to us that the object of the original Order in pursuance of the purpose of the Defence Act and of the Regulations made thereunder was to prevent the free transfer from one person to another of motor-vehicles unless the Competent Authority was of opinion that such transfers were essential or desirable in relation to those purposes. Counsel for the judgment-creditor suggested, by way of example, that the authority could thereunder refuse to permit the transfer of a motor-vehicle from a person who used the same in connection with essential war services to one who proposed to use it solely for purposes of private pleasure. We consider the illustration apt and 6re of the opinion that the prohibition of such a transfer is within the objects of the Order. In order to make such prohibition effective it is necessary that the authority should have the power to refuse permission of “any transfer of the property” in the vehicle in pursuance of a non-essential or undesirable purpose. Is a mortgage such a transfer of the property? We think that it is:, for as was said by the Master of the Rolls in Bennett v. Wyndham (2), where the object of the trust was to prohibit the alienation of the trust property, the transfer of property by way of mortgage cannot be made without giving to the mortgagee also the power of obtaining possession if the charge is not paid off when required. A transfer of property which gives to the transferee power of getting possession in a certain event does no more than defer to the happening of that event the transfer of that property and possession which distinguish what has been described by the learned Judge as “the whole property” or, as was referred to by Counsel for the claim- ants, as the transfer of the property and possession absolutely. For these reasons we are of the opinion that the transfer of the property in a used motor-vehicle by way of mortgage falls within the object and terms of the Order and that the document, whereby the judgment-debtor purported to make such a transfer to the claimants without the permission prescribed by the Order, is void and of no effect. The learned Judge erred therefore when he deferred the judgment- creditor's rights to those of the claimants under a document which is void, and his judgment in this respect will be set aside.
In regard to -the spare parts the judgment-creditor submits that as these were not included in the Bill of Sale, although referred to in the undertaking, there is no charge upon them to which the judgment-creditor’s right of seizure in execution could be deferred.
We are in agreement with Counsel for the claimants, however, that the under- taking being an agreement to charge operates as creating an equitable mortgage of these chattels (National Provincial and Union Bank of England v. Charnley (3)). The learned trial Judge was right therefore when he held that the judgment- creditor was entitled to seize those spare parts but subject to the claimants’ prior equitable mortgage thereon.
In the result the claimants' appeal is dismissed and the judgment of the Court below is upheld in so far as it relates to the land at Kumasi. The cross-appear by the judgment-creditor is allowed in so far as it relates to the lorries and trailers and the judgment of the Court below is set aside in that respect, judgment to be entered for the judgment-creditor on that part of the claim. The cross- appeal is dismissed in so far as it relates to the spare parts and the judgment of the Court below is upheld in that regard.
As regards costs. The judgment-creditor, having succeeded in respect of the claims to all the property seized save the spare parts, will get three-quarters of the costs in that Court to be taxed. In this Court the claimants must pay the judgment-creditor’s costs of their appeal which has failed, assessed at £18 3s. 0d.
In the cross-appeal the judgment-creditor, having succeeded in regard to the main issue but having failed in respect of the spare parts, win get two-thirds of his costs assessed at £11 6s. 0d.
Appeal by F. and M. Khoury dismissed.
Cross-appeal by P. S. Azar allowed in so far as it related to the lorries and trailers, and dismissed in so far as it related to spare parts.