Manyo-Plange, J. This is an appeal from a judgment of the Divisional Court, Kumasi, dismissing the plaintiff-appellant’s claim for £158, being balance or surplus of proceeds of sale of mortgaged property or to account for the said defendant surplus or, in the alternative to set aside the sale of the mortgaged property, three cocoa farms, on the grounds:
“(1) Invalidity of the sale due to sale taking place before power of sale had arisen.
(2) For not exercising the power of sale in accordance with the rules required by the law, or in the alternative for £450 (Four hundred and fifty pounds) damages for wrongful sale of the said cocoa farms.”
The facts in this case are briefly as follows:
One Kwabena Nkromah by Exhibit “A”, a deed of mortgage dated the 15th August, 1947, mortgaged to the first defendant-respondent three cocoa farms on land, described as “Namon” at Kubin, to secure a loan of £220, repayable within a period of eight months from the date of the mortgage. Exhibit “A” contained the usual power sale but the deed provided that “the power of sale herein before contained shall not be exercised unless and until default shall be made in payment of the total sum of £220 or any part thereof by the mortgagor to the mortgagee under this security as aforesaid on demand, and also for the space of one calendar month next, after a notice in writing requiring such payment shall by or on behalf of the mortgagee have been given to the mortgagor or left at the usual or last known place of abode of the mortgagor or one of his executors or left upon or affixed to some part of the said hereditaments or on some building thereon.”
Kwabena Nkromah died before the due date and the plaintiff-appellant who became Kwabena Nkromah’s successor according to native law and custom was served with a notice to pay; the notice is Exhibit “3”and is dated 2nd January, 1948. The notice although it was addressed to Kwabena Nkromah, was served on his successor, plaintiff -appellant see page 7 of the record.
After the notice of 2nd January, 1948, no other notice was served on plaintiff- appellant and, the mortgage debt not having been paid on 16th April, 1948, the due date, the mortgaged farms were sold on the 22nd April, 1948.
When the notices of the sale were filed, Kwame Ewuah, first co-defendant- respondent notified the auctioneer that he was holding a prior mortgage on the farms advertised for sale; his mortgage is Exhibit “1”. Then Kwaku Addae, second co-defendant-respondent sued plaintiff-appellant, defendant-respondent and the auctioneer, third co-defendant-respondent, claiming for a declaration that by a mortgage dated 3rd August, 1948, he was a mortgagee of one of the farms advertised for sale and for an injunction to restrain the sale, pending the hearing of his claim. Kwaku Addae’s mortgage is Exhibit “2”.
Upon investigation by the auctioneer, it was discovered that the three farms mortgaged to defendant-respondent were also mortgaged to Kwame Ewuah, first co-defendant and one of them to Kwaku Addae, second co- defendant-respondent. When this state of affairs was discovered, it was upon the advice of the auctioneer, agreed that defendant-respondent and first co-defendant- respondent should payoff the second co-defendant-respondent for him to with- draw his action, so as to enable the sale to proceed and for the defendant- respondent and first co-defendant-respondent to pay themselves out of the proceeds. This was done and, on the sale of the farms, net proceeds of £378 was realised and this the defendant-respondent and first co-defendant-respondent shared towards payment of their respective loans of £220 and £225 and the £48 paid to Kweku Addae second co-defendant-respondent.
Had there been no other incumbrances on the farms, the plaintiff-appellant should have been entitled to a surplus of £158 and it was for this sum he claimed or in the alternative to set aside the sale. The plaintiff-appellant sued only the if defendant-respondent; at the request of the latter, the first, second and third d co-defendants-respondents were joined. I should here point out that on 22nd April, 1948, when the farms were sold, there had been default under all the three mortgages
The learned trial judge by his judgment in effect found as a fact the three farms mortgaged to the defendant-respondent had been previously mortgaged to the first co-defendant-respondent and one of them to the second co-defendant- respondent. He also found as a fact that there was nothing after the net proceeds of the sale had been used by the defendant-respondent to pay himself and the other two previous mortgagees, These findings in my view were supported by the evidence and on them he gave judgment for the defendant and co-defendants- respondents.
The learned trial judge did not give his reasons for giving judgment against the plaintiff-appellant on his alternative claim to have the sale set aside or in the alternative for £450 damages.
The plaintiff-appellant filed seven grounds of appeal. The only grounds of any substance are grounds one, three and five which taken together, challenge the validity of the sale on the ground of the wrongful exercise of the power of sale, and ground six which alleges that the plaintiff-appellant should have been awarded damages for the wrongful sale of the farms. Ground six therefore depends on grounds one. three and five which were argued together. The real complaint is to be found in ground five which alleges as follows:
“That the alleged Notice of intention to exercise the power of sale by the auctioneer at the instance of the first defendant dated 2nd January, 1950, was not legal and proper, in that at that time the date of repayment under the mortgage deed was not due.”
In support of this ground Counsel for the appellant referred to the requirement for written notice in the mortgage deed which was a condition precedent to the exercise of the power of sale. The deed required inter alia that the power of sale shall not be exercised unless default had been made “for the space of one calendar month next after a notice in writing requiring such payment shall by or on behalf of the mortgagee have been given to the mortgagor” He contended that this requirement was not complied with, and that the letter Exhibit “3” was no compliance, because when the letter was served on the plaintiff- appellant, the repayment of the debt was not due; therefore when the farms were sold there had not been such a default as could give rise to the exercise of the power of sale and referred to the case of Selwyn v. Garfit.
Counsel for the defendant-respondent has endeavoured to distinguish Selwyn v. Garftt from this case. He submitted that in Selwyn v. Garftt the mortgagor was :n by virtue of the proviso to the power of sale given a further three months after the due date to pay and that the three months had not expired when the power was exercised. He contended that in this case the power became exercisable the moment there was default on the due date provided one calendar month’s notice had been given of the intention to exercise the power, no matter when that notice was given, and that exhibit “3” was a compliance with that provision.
I am unable to accede to this argument. There would have been some weight in the argument, if the provision had only required the mortgagee to give the mortgagor notice of intention to sell. In this case, like Selwyn v. Garftt. the provision said. if on the due date that is 31st January, 1948, after demand, the debt were not paid. then the mortgagee if he wished to exercise the power of sale must give notice in writing requiring payment and could only sell if there were default for the space of one calendar month from the 4ate of the notice.
The only distinction between the two cases is the period of grace after notice requiring payment; the period being three months in Selwyn v. Garftt and in this case one month. The letter exhibit “3 “in my view is nothing more than notice of an intention to act in accordance with the mortgage deed if the debt were not paid on the due date. It follows, that the mortgagor was not given