Kilburn v Estate Kilburn
Encyclopedia
Kilburn Appellant v Estate Kilburn Respondent, an important case in South Africa
n property
law, was heard in the Appellate Division on September 15 and 29, 1931
.
to be valid, there must be a legal or natural obligation to which the hypothecation
is accessory. In Kilburn, a husband had, before his marriage
, passed and registered a notarial bond for £500 as a second charge on all his property in favour of his wife.
.
The principal debt was invalid, and so, in turn, was the notarial bond. As, therefore, there was no legal obligation secured by the bond, the wife could not, on the insolvency of her husband, claim in a concursus creditorum on the bond. The decision of the court a quo (in the Natal
Provincial Division) in Kilburn v Estate Kilburn was thus confirmed.
South Africa
The Republic of South Africa is a country in southern Africa. Located at the southern tip of Africa, it is divided into nine provinces, with of coastline on the Atlantic and Indian oceans...
n property
South African property law
South African property law regulates the "rights of people in or over certain objects or things." It is concerned, in other words, with a person's ability to undertake certain actions with certain kinds of objects in accordance with South African law....
law, was heard in the Appellate Division on September 15 and 29, 1931
1931 in South Africa
-Events:* 11 December - Statute of Westminster grants sovereignty to the British dominions* 19 December - The South Africa beat Ireland 8-3 in Ireland...
.
Facts
For a mortgageMortgage
A mortgage is a security interest in real property held by a lender as a security for a debt, usually a loan of money. A mortgage in itself is not a debt, it is the lender's security for a debt...
to be valid, there must be a legal or natural obligation to which the hypothecation
Hypothecation
Hypothecation is the practice where a borrower pledges collateral to secure a debt. The borrower retains ownership of the collateral, but it is "hypothetically" controlled by the creditor in that he has the right to seize possession if the borrower defaults...
is accessory. In Kilburn, a husband had, before his marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
, passed and registered a notarial bond for £500 as a second charge on all his property in favour of his wife.
Judgment
The court found as a fact that, although the bond purported to secure a sum of £500 which the husband had verbally promised to pay his wife, it was not a serious promise, and there was therefore no intention to pay that sum. The intention of the spouses, in agreeing to the notarial bond, was only to give a preferential claim on the sum if the husband were to be declared insolventInsolvency
Insolvency means the inability to pay one's debts as they fall due. Usually used to refer to a business, insolvency refers to the inability of a company to pay off its debts.Business insolvency is defined in two different ways:...
.
The principal debt was invalid, and so, in turn, was the notarial bond. As, therefore, there was no legal obligation secured by the bond, the wife could not, on the insolvency of her husband, claim in a concursus creditorum on the bond. The decision of the court a quo (in the Natal
KwaZulu-Natal
KwaZulu-Natal is a province of South Africa. Prior to 1994, the territory now known as KwaZulu-Natal was made up of the province of Natal and the homeland of KwaZulu....
Provincial Division) in Kilburn v Estate Kilburn was thus confirmed.