Some Controverted Point* of Local Law with Respect to Leases. 217 



In Green v. Griffiths (4 S. C. 346) Sir Henry (now Lord) [)e Villiers 

 refers to both cases, Maynard v. Usher and Herbert v. Anderson. Ho 

 says : " The case of Maj'nard v. Usher (2 Menzies 170) is generally cited 

 in support of the proposition that a leas;-, however long, is binding upon 

 a purchaser of the land from the lessor, but this proposition is too widely 

 stated, for the purchaser, in that case, had full notice of t'.e long lease of 

 ninety-nine years, which was in fact annexed to and registered with his 

 transfer deed. The Court decided that the Placaat of the 9th of May, 

 1744, was not in force in this colony, but even before 1744 it was the 

 better opinion that a lease was not binding upon the particular successor 

 of the lessor unless it was made coram jwdice rei sitae or unless if made 

 by a private contract it was for a shorter period than ten years. 

 (Groeneweg ad. Cod. 4. 65. 9.) A lease for a longer period than ten years 

 was regarded as a virtual alienation of the property. The Placaat of 

 1744 extended this period to twenty-five years and required all leases for 

 that period or longer to be duly registered in the same way as every other 

 alienation of immovable property." As stated above, any doubt on the 

 point has now been settled by statute which is on the lines of the tlacaat 

 above referred to. It is most desirable that there should be legislation on 

 the point in this colony, for the law 7 here is as it was in South Africa 

 before the statute in question was passed. Decisions here are very few 

 and those that are on record are not all very satisfactory. 



The case of Administrator General v. Da Silva (L. J. 20. 12. 1902) 

 also decided by Mr. Justice Swan, takes us still further from the law as it 

 exists in this colony, for there he lays down unequivocally that "a lease 

 of land is a chattel, that is, movable property." In support of his finding 

 he quotes an order on a petition dated 8th October, 1881, made by Mr. 

 Justice Semper (in the absence of the Chief Justice Sir David Chalmers) 

 to the following effect : " The warrant of execution prayed for is not 

 necessary as the right title and interest of the within named Manoel 

 DOliveira in and to the lease of the piece of land herein mentioned, with 

 the building thereon, must be regarded as movable property."' Reference 

 to the original petition does not show for what term the lease existed, but 

 the fact that a return was made that no movable property could be found 

 and that application was made to the Court for leave to levy on immov- 

 able property shows that at that time at any rate opinions differed. If 

 the lease in question was for ten years or upwards, the order, I submit, 

 was wrong. 



I am supported in my opinion of the finding in Administrator 

 General v. Da Silva (ubi supra) by Mr. Justice Hewick in his judgment in 

 the case of De Freitas v. Gonsalves (L.J. 18. 4. 1904.) Mr. Hewick 

 states he is unable to agree with the decision in that case ; he adds that 

 he fails to see how a lease can be the subject of an interpleader suit (i. e., 

 that it is not a movable), but is of opinion that the sale at execution of the 

 right title and interest in a lease of land can be opposed (i. e., that it is 

 immovable.) 



