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BABA SINNO ». SASERA.
D.G., Kegalla, 1,071.
Action de evictione—Necessity of ' formal notice to defendant—Liab.lity ofvendors of land, upon eviction of vendor, to pay to ■ him damages as forimproved value—Liability for damages pro rata—Extent of liability ofexecutor de son tort.
An action de evictione isan actionbya purchaser of landagainsthis
.vendors to. recover damagesin respectofan eviction by thetrue owners
of a part of the land purchased by him.
To support an action de evictione it is necessary to allege and provethat formal notice of action was served on the defendant accompaniedby a copy of the libel orplaint of theaction in ejectment,so thatthe-
vendors may know what itis that isalleged in the action, and whatthe
case is which has to be met.
In such an action the plaintiff is not entitled to recover by way of'damages the increased value of the land, in consequence of improvementsmade by him. He should have claimed in the action in ejectment toretain ' possession until he had been recouped for his improvements, ifhe neglected, to adduce this plea, it was his own fault.
The vendors of the land should not be made liable for the whole ofthe damages in solidum, but only for the share payable by each..'
An' executor de' son tort, who was sued' as one of the vendors, cannotbe made liable for more than the assets of the deceased which came intohis hands..
HE facts of the case are fully set forth in the judgment ofthe Chief Justice.
Jayawardena, for appellant.—Plaintiff’s action is bad, inthat he did not notice hie vendors to warrant and defend his title.All 'the parties joined in the deed must be parties in this suit;that • is not so here. [Bonser, C.J.—You might have taken thatobjection at the trial, and then they would have been joined.]But notice should have been given. Voet, 21, 2, 21 (Berwick’stranslation, p. 518). [Bonser, C.J.—They had notice from othersources.] That is not sufficient. Voet says so in section 22.
Bawa, for respondent.—The question of notice was not raisedat the trial; if raised then, notice might . have • been proved.No form of tthe notice required is given (Civil Minutes, D. C.,Galle, 1,355, 8th August, 1893; Fernando v. Jayawardene, 2
N.L. B. 309; .Perera v. Amaris Appu, 1 8. C. C. 54; Voet,21, 3, 18). Each of the defendants noticed is bound to warrantpurchaser’s title (Digest 45, 1, 85).
1st March, 1901. Bonser, C.J.—
This is an action de evictione; that is to say, it is an action by apurchaser of land against his vendors to recover damages inrespect of an eviction by the .true owners of a part of the landpurchased by him.
. February ■ 28-and
March i." ■
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Now, it appears that on the 28th August, 1891, five Sinhalese-villagers, living in' a village in the Kegalla District, sold and •conveyed by a notarial deed to the plaintiff' in this action, whoappears to be a low-country Sinhalese, a hena, which is describedas being of two pelas’ paddy sowing extent.- The considerationfor the deed is expressed to be Es. 25, but the notary in his state-ment appended to the conveyance states that the sum of Es. 15 waspaid in his presence, and that the balance of Es. 10 was admittedto have been received previously. Whether that was the trueconsideration or not, is not .quite clear. One of -the defendantsswore that all that they got was Es. 12, and that statement hasnot been contradicted. The plaintiff went into possession, andalleges that he built a gala and a hut, and made various improvementson the land.
Subsequently some Moormen, who were adjoining landowners,claimed 4 portion of the land which had been sold to the plaintiff,and brought two separate actions in the Avisawella Court to asserttheir title. In both these actions they were successful, and the' plaintiff incurred certain costs in defending the actions.
He then commenced the present action claiming against twoof. his vendors and the son of a third vendor who had died, andwhose son was alleged to have alienated his .inheritance. Heclaimed against these three . persons, alleging that. the value ofthese two small pieces of- iand from which he had been ejectedby the decree of the Court was Es. 260, and that the costs of theactions amounted to Es. 240, and in his plaint he alleged that thefirst defendant Sasira had due notice of the said action, in tbht heappeared as witness in the said case. There is no such statementas regards either of the other defendants.
The District Judge gave judgment in solidum against two ofthese three defendants, condemning them to pay Es. 360 and costsmade up of two sums, Es. 200 and Es. 160; Es. 200 being theamount allowed by the District Judge as the value of the landand buildings, and Es. 160 which he allowed for the costs ofdefending the two actions.
The defendants have appealed. Now it- is quite clear that, tosupport an action de evictione, it is necessary to allege and provethat formal notice was served on the defendant of the suit foreviction, and Voet states that the practice was in his day—and tomy mind it is- a reasonable practice—that a notice should beaccompanied by a copy of the libel or plaint of the action inejectment, so that the vendors may know what it is that is allegedin the action, and what the case is which has to be met. Voetclearly lays down that it .is not sufficient that the vendor' should
February 88and'March 1.
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1901. know about .this suit from some other source. He says that it-™ necessary that formal notice should be given by the purchaser.
March l. In the present case, as I said before, he did not Allege that anyBonser c J 8u°h formal notice was given to any of these defendants. Allthat is alleged as regards the first defendant is that he had duenotice of the action, in that he appeared as a witness. I shouldalso say that in the course of the trial the third defendant stated,in answer to a question put, not by the plaintiff’s counsel, but byhis own counsel:“ I was noticed to warrant and defend plaintifE’e
title. I gave evidence ”.' What the nature of that notice was doesnot appear. Mr. Bawa says that, if the case goes back, he may beable to show that due and formal notice, in accordance with therequirements of the law, was given in each case, and I think it isnot unreasonable that in the circumstances .of the case an oppor-tunity should be given him of proving this, if it is really thecase.
Then, as regards the amount of the damages, it will be observedthat for a small portion of this , land, which was sold by the ven-dors for not. more than Rs. 25—and it may be considerably less—the damages have been given to the extent of Rs. 200, because*it issaid that the property has increased in value owing to the buildingsand improvements which have been made by the purchaser—theplaintiff in this' action—since his purchase. But it seems to meunfair that the vendor should be mulcted in these heavy damages.-The purchaser might have claimed in the action in ejectment toretain possession until he ' had been recouped for his improve-ments, and, if he neglected to advance this plea, it is his ownfault, and it will be unfair that the vendors should suffer byreason of the default of the purchaser.
'Then, to come to the form of the decree. There were five vendors,and there are only three of these vendors who have been sued,or rather two vendors and a person who is said to have con-stituted himself the executor de son tort of another vendor. Thesethree defendants are made liable for the whole of the damagesalleged to have been sustained by the purchaser, and judgment isgiven against them in solidum. Now, Voet clearly lays down thatwhere there are more vendor's than one, a purchaser cannot sueany individual in an action de evictione for more than his share.Therefore the form of the decree is wrong. Whatever is found tobe the amount of the damages sustained by the purchaser shouldhave been divided by five and a decree entered up against eachof the defendants for a fifth.
Again, as regards the second defendant who is sued as executortie son tort of this deceased partner, who was one of the vendors,
Jie is made liable by this decree as though he were a vendor him-self, whereas it is quite clear that the only form of decree againsthim must be a decree to the extent only of the assets which hehas received.
The case must go back on the question whether due and formalnotice of the action of both or either of these actions was givento all or any of these defendants. In any case where such noticewas not given the plaintiff's action will fail.
March 1.Bonseb.C. J.
Browne, A.J.—I agree.
BABA SINNO v. SASIRA