POLYXENI J. MICHAILIDES ν. HARRY THOMPSON (V1) 1 CLR 108

POLYXENI J. MICHAILIDES ν. HARRY THOMPSON (V1) 1 CLR 108 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V1) 1 CLR 108 1890 June 23 [BOVILL, C.J. AND SMITH, J.] POLYXENI J. MICHAILIDES Plaintiff, v. HARRY THOMPSON Defendant. PRIVILEGE OF GOVERNMENT AS A CREDITOR-CLAIM OF PRIORITY FOR TAXES DUE ON FORCED SALE OF IMMOVEABLES-ARTICLE 36 OF LAND CODE-REGULATIONS OF 14 DJEMZUEL ACHIR, 1277, CAP., VI., ARTICLE 3. Where upon a forced sale of immoveable property the judgment debtor owes various sums for different taxes to the Government, and the purchase money upon such a sale incidentally comes into the hands of an Officer of Government charged with the collection of taxes: HELD: That such Officer of Government is only entitled to retain out of the purchase money such a sum as will suffice to pay the taxes known as verghi kimat and verghi irad due on the properties sold. APPEAL from the District Court of Paphos. The facts and arguments sufficiently appear from the judgment. Collyer, Q.A., for appellant. Pascal Constantinides, for respondent. Judgment: In this action the defendant appeals from the judgment of the District court of Paphos, which has practically decided that on transfers of immoveable property, the officials of the Land Registry Office have no right to require payment of taxes of any description, or tithes, due to the Government from the vendor or transferor. The action is in form an action against Harry Thompson personally. Harry Thompson, who is the Commissioner of Paphos, and the head of the Land Registry Office in that district, consenting to appear and defend the action personally in order to obtain a judicial decision on the question at issues. The facts of the case are as follows: Plaintiff having obtained judgments on money claims against certain persons, subsequently obtained orders from the Court for the sale of certain immoveable properties belonging to the judgment debtors. The properties were put up for sale, according to the established practice in such cases by the officials of the Land Registry Office, and sold. The monies realized on the sales were paid to, or came under the control of, the Land Registry Office, and after payment of the costs of sale, were applied in the first place in satisfaction of verghi, tithes, bedel askerieh and locust tax due by the debtors to the public treasury. The plaintiff objects to this, and contends that the money realized by the sale ought to be applied primarily in payment of the debt due to her, and that the Government have no right to retain any part of that money until her claim is satisfied. The defendant, on the other hand, contends, that as transfers of land can be made by permission of the Government, the Government have right to withhold that permission until any conditions they think well to impose are complied with; that it has been the invariable practice of the officials of the Land Registry Office in similar cases to retain so much of the sale monies as will satisfy the sums due to the Government for taxes, tithes, etc., from the person whose land is sold, and that he has therefore acted only in the proper discharge of his duty and is under no liability to the plaintiff. The District Court has held that the plaintiff's contention is correct, and has given judgment against the defendant for the full amount claimed. The Ottoman Law on this subject appears to us to be very obscure and somewhat meager. We do, however, find indications that the Ottoman Government asserted their right to insist upon the taxes on land being paid before the possessor of it transferred it. In the Regulations of 14 Djemazuel Achir, 1277 (Greek translation of Destour, p.707), which provide for a general registration of population and property (see Cap. VI., Article 3), judges are directed not to permit transfers of land, unless the person wishing to transfer, produces a receipt for the taxes, and in and Emirname, recorded at the Land Registry Office, it is stated that by an imperial Irade it has been directed that transfers of property are not to be made, unless the verghis due are paid. It would have been more satisfactory if we could have seen the Irade which is referred to, but we feel that we must regard the Emirname as an authentative statement of that Irade, and a direction to the Officers of Land Registry to comply with its provisions. It is evident that the officials to whom it was addressed would be under the necessity of acting in conformity with the directions it contains, and it is equally evident that any individual who objected to the action of these officials would have no redress; indeed we consider that in a country, the Government is, such a ministerial order, as this Emirname must be taken to have the force of law. Though the provision we there find are somewhat vague for disposing of a question of such immediate importance to individuals, we are of opinion that they do nevertheless establish the fact that the Ottoman Government asserted and exercised the right to insist upon taxes being paid before any transfer or alienation of land, in respect of the possession of which such taxes had become payable, was allowed. We do not know of any provision which establishes or declares the right of Government to demand from a vendor of land any other debt due by him to the State, before he is allowed to effect his transfer. It appears to us whilst it is reasonable and convenient, and to the interest of the community at large, that the State should assert the right to insist on taxes due to them in respect of the tenure of land being paid before the possessor transfers his right of possession to another, there can be no real reason alleged why officers of the State should refuse to allow of a transfer in the absence of proof by the transferor that there are no imposts of any sort due from him to State. Such proof would often be impossible, the furnishing of it would lead to countless difficulties, and, if it were necessary, land would become an unmarketable commodity. Yet, if the contention of the defendant is correct, that a vendor of land must pay all imposts due from him before he is allowed to transfer, we do not see how the transfer can be allowed by the officials of the State without the production of such evidence as we have mentioned. If there be no obligation on a vendor of land to pay all imposts due from him to the State before he effects his sale, we do not think that the fact that the purchase money has accidentally come into the hands of an official of the State, would, in the absence of some law or established custom, justify such official in retaining any such impost. For these reason we consider that the defendant was acting in the discharge of his duties as an officer of the Government of Cyprus in retaining so much of the purchase money of the properties sold as was sufficient to pay any verghi due from the possessors of the property, in respect to their possession thereof, (that is any verghi kimat or irad), but that he was not justified in retaining any further portion of it. We shall therefore vary the judgment of the Court below, and give judgment for the plaintiff for £4 15s. 2cp. only, together with interest at the rate of 9 per cent. Per annum, from the 4th day of February, 1889, being the date of the writ in this action, and we consider that, under the circumstances of this case, it is right that we should allow the appellant no costs of his appeal. Judgment varied. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο