Milleks, Branch of United Africa Co. Ltd. of CAPE COAST v. SOPHIA AMISSAH AND OTHERS
March 22, 1930
DIVISIONAL COURT (COLONIAL)
GHANA
CORAM
- Mr. Justice Gardiner Smith
Areas of Law
- Contract Law
- Equity and Trusts
- Property and Real Estate Law
March 22, 1930
DIVISIONAL COURT (COLONIAL)
GHANA
CORAM
Gardiner Smith, J.
By his Will the late W. B. Amissah devised his house at Gegem, Cape Coast, to his wife and children. Upon his death the widow and children became joint tenants. The children mortgaged the property. The widow was not a party to the mortgage. The mortgage was therefore voidable at the instance of the widow. The widow, however, upon obtaining an assurance from the mortgagees that the property would in no case be sold, has discontinued . her action to have the mortgage set aside. The children now submit that it is void, so that they are not liable under the covenant contained therein.
In my opinion it is not void. Even if the conveyance of the property contained therein were void the collateral covenant can be enforced. Halsbury, Vol. 7 ss.807, 847. Pollock's Principles of Contract 8th, ed. p. 385.
I hold further that the defendants are estopped by their own deed and also that having thereby induced plaintiffs to employ one of them as storekeeper and so enjoyed the consideration given by the plaintiffs for the mortgage, they cannot now repudiate their contract.
There will be judgment for plaintiffs against defendants jointly and severally in the sum of £16410 s. 10 d. with costs to be taxed.
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AI Generated Summary
Mr. Justice Gardiner Smith adjudicated a dispute over a mortgage executed by the children of the late W. B. Amissah on a house at Gegem, Cape Coast, which had been devised to Amissahs wife and children, creating a joint tenancy. The widow did not join the mortgage and initially sought to set it aside, but she discontinued that action after receiving assurances from the mortgagees that the property would not be sold. The children later contended the mortgage was void, seeking to avoid liability under a covenant in the mortgage. The judge held that the mortgage was not void and that, even if the conveyance of the property within it were void, the collateral covenant remained enforceable, citing Halsbury and Pollock. He further found the defendants estopped by deed and by conduct (including inducement of employment and acceptance of consideration), and entered joint and several judgment for the mortgagees with taxed costs.