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Present: Lascelles C.J. and Wood Benton J.BABAIHAMY t>. DANCHIHAMY et al.32—D. <7. GaUe, 11,323.
Sale—Vacant possession—Compromise by purchaser—Right to sue vendorfor damages.
If a vendor does not give vacant possession to the purchaser,the purchaser would not be under any obligation to take preliminarysteps against the persons who had ousted him, or to give to hisvendors notice to warrant and defend the title which they hadpurported to convey, but would have an immediate right of actionagainst them for their failure to implement the primary obligationof the contract of sale. On the other hand, if vacant possessionwas given, the first duty of the purchaser who had been ousted bythird parties would be to avail himself of the remedy which thelaw gives him against such parties, and thereafter, when he hadsuffered judicial eviction, to call upon his vendors to warrant anddefend title.
The acceptance by a purchaser of a compromise in an action*brought by him against third parties who had ousted him wouldthrow on the purchaser himself the burden of showing that thesettlement arrived at was the best thing that could be done underthe circumstances with which he had to deal.
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Zo-ysa (with him Vernon Ghrenier), for the plaintiff, respondent.—The respondent had no alternative but to compromise the caseunder the circumstances. The defendants were noticed to warrantand defend the plaintiff's title, but they took no part in the case,and left the plaintiff alone to fight the case. The plaintiff wasunable to establish his title in the Court of Bequests case, andthe compromising of the case was the best thing to do under thecircumstances.
The District Judge has held that the plaintiff was not givenvacant possession by the vendors; in such a case the plaintiff hasan immediate cause of action against the vendors for damages(Batwatte v. Dullewe l).
Jayewardene, in reply.—There is no material on the record tosupport the finding of the District Judge that vacant possessionhad not been given. Counsel cited Qunmnanse v. Don Hendrick*2
February 28, 1918. Wood Benton J.—
The parties to this action have so far been content to rest theirrespective cases in the District Court on the pleadings, on certainissues of law which were framed, at the hearing, and on documentaryevidence that was adduced. The plaintiff-respondent alleges thatthe appellant sold a land to him by deed dated October 17, 1910;that he was prevented from taking possession of the land by certainthird parties; that he sued them in* case No. 6,461 of the AdditionalCourt of Bequests of Galle, calling upon his vendors to warrant anddefend title; that the latter failed to do so; and that his action inthe Court of Bequests was dismissed. On the strength of theseallegations, >he claims damages against the appellants in the presentaction. The appellants in their answer denied that there was anyexpress condition in the deed of sale which bound them to warrantand defend the respondent's title in the Court of Bequests action,and they say that the notice issued to them in that action was badin law; that the respondent has debarred himself from any remedyagainst them by having compromised it, and, further, that when Heinformed them of the dispute they offered to take back the landand to repay him his money. Four issues were framed at the trial,raising respectively the following questions:—The existence of the
1 (1907) 10 N. L.B.3042 (1910) 13 N. L. B. 335.
'J'HE facts appear from the judgment.
A. St. V. Jayewardene, for the defendants, appellants.—Therespondent compromised the action in the Court of Bequests onhis own responsibility. He is not, therefore, entitled to sue thedefendants (his vendors) for damages. Counsel cited Voet 21, 2, 30.
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alleged covenant to warrant and defend title; the eviction or non-eviction of the respondent by process of law; the validity of thenotice to warrant and defend title; and the effect of the compromiseby the respondent in the Court of Bequests action. No vivd voceevidence was adduced on either Bide, and the learned District Judgehas given judgment in favour of the respondent substantially onthe following grounds. He holds that there was a covenant towarrant and defend title; that the vendors did not in the presentcase give to the respondent that vacant possession which imposedupon him any duty to serve a notice on his vendors to warrant anddefend title; that the notice actually given was 'good in law; andthat the compromise in the Court of Bequests action was the onlyreasonable step that the respondent could take under the circum-stances. The appellants’ counsel to-day has not disputed theexistence of an express covenant by the vendors to warrant anddefend the title conveyed by the deed of October 17, 1910, or thatthe notice to warrant and defend title was formally sufficient. Buthe argues that the learned District Judge had before him no materialson which he was entitled to hold that vacant possession of the landin question had not been given, or that the compromise was .effectedunder circumstances which would prevent . it from barring * therespondent’s present daim. It is no doubt possible, by comparingthe pleadings in the present action with those in the Court ofBequests action, and by examining the arguments of counsel, todraw the inference which the District Judge has in fact drawn fromthe scanty materials on the face of the record as it. stands. But inview of the fact that the respondent himself ‘has come into Court on afooting which is only intelligible on the ground that circumstancesimposing upon him the duty of giving notice to warrant and defendhad arisen, I do not think that it would be fair to dispose of theaction without further inquiry in the District Court. There seemsto be very little doubt now as to what the law applicable to casesof this kind is. If in point of fact vacant possession was not given,the respondent would be under no obligation to take preliminarysteps against the persons who had ousted him, or to give to hisvendors notice to warrant and defend the title which they hadpurported to convey, but would have an immediate right of actionagainst them for their failure to implement the primary obligationof the contract of sale. On the other hand, if vacant possessionwas given, the decision of this Court in Gurunnanse v. Don Hendrick1is an authority binding upon us that the first duty of the purchaserwho had been ousted by third parties would be to avail himself ofthe remedy which the law gives him against such parties, and there-.after, when he had suffered judicial eviction,, to call upon his vendorsto warrant and defend title. It is clear also from the passage citedto us from Voet 21, 2, 30, that the acceptance by a purchaser in the
i (1910) 18 N. L. R. m.
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position of the present respondent of a compromise in an actionbrought by him against third parties who had ousted him wouldbe evidence from which the inference might be drawn that he hadnot done his best to defend the vacant possession secured to himby his vendors. I think that the making of a compromise undersuch circumstances would throw on the purchaser himself theburden of showing that the settlement arrived at wsb the best thingthat could be done under the circumstances with which he had todeal. On this ground I would propose to set aside the decree of theDistrict Judge in favour of the plaintiff-respondent, and send thecase back for trial of issues; in the first place, as to whether or notthe applicants had given to the respondent vacant possession of theproperty sold to him by the deed of October 17, 1910, and in thenext place, whether the respondent’s consenting to judgment inthe Additional Court of Bequests, Galle, No. 64,611, was a reason-able compromise under all the circumstances. The burden of rebut-ting the presumption, which I think the mere making of a compro-mise would create against him, will lie on the respondent. In viewof the fact that there has been no contest at the argument of theappeal here to-day, either as to the existence of the covenant towarrant and defend, or as to the formal sufficiency of the noticeto warrant and defend, I do not think that there ought to be anyfurther inquiry in regard to either of these points. They may.fairly be regarded as finally settled between the parties. I wouldpropose that all costs, including the costs of the present appeal,should abide the event. The learned District Judge, after having•held an inquiry into the issues above stated, will adjudicate finallyin the action.
I entirely agree, and have nothing to add.
BABAIHAMY v. DANCHIHAMY et al