Ralph Brothers v Hurry's Insolvent Estate [1911] ZAWLD 5 (13 March 1911)

lnsolvency - Stay of Actions - Vindicatory Proceedings against Provisional Trustee - Law 13 of 1895 - Sale - Mortgage or Sale - Hire Purchase Practice - Motion or Action - Possession.

The Court will entertain proceedings against a provisional trustee for the vindication of movables being used on behalf of the insolvent estate, and being deteriorated by such use.

A. purchased certain furniture on a hire-purchase agreement, 
and before all the instalments had been paid the sellers ceded their rights to B., to whom A. then mortgaged the furniture in security for the amounts of the unpaid instalments and certain other debts due by him. Thereafter A. became indebted further to B., and in satisfaction of his total indebtedness, purported to sell and deliver the furniture to B., on condition that B. should enter into a hirepurchase agreement in regard to the furniture with C., who was married to A. and was carrying on business as a boarding-house keeper. An agreement purporting to be one of hire-purchase was thereupon executed by B. and C. in ordinary form of such agreements, but with a stipulation that C. should have power to terminate the agreement by one month's notice, and thereby to relieve himself from liability thereunder for payment of instalments not then due.

Held, that assuming that B. had had possession of the furniture, the transactions between the parties amounted in law to a sale by A. to B. and a letting by B. to C., and not to a mortgage of the furniture to B.
(John vs. Trimble (1902) T.H., 146, distinguished.)

The Court refused to decide the question pf possession, on motion, but gave the applicants leave to proceed by way of action.