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– Present : Ennis J. and Schneider A.J.
HADJIAB et al. y. DON et al.
194—D. G. .Colombo, 39,7*71.
Vendor and purchaser—Land sold passing through . a number of hands—A ction bylastpurchaser against all previous vendors . for damages
A sold alandto Bandentered into a covenantto warrant »n<^
defend the title to B and his • assigns. B sold it to C with a similarcovenant. Csoldit toD.D brought this actionagainst A, B,
and C for damages consequent on eviction.
^ Held, thattheactionwasmaintainable against*’ allthe defendants,
as there was privity of contract between the plaintiff and all thedefendants.
Held, further, that there was no misjoinder of defendants.
facts are set out in the judgment of Schneider A.J.
Samarawickreme and Bartholomews^, for plaintiffs appellants.
Drieberg (with him Koch), for 2nd defendant, respondent.
Cur. adv. ‘ouli.
June 12, 1916, Ennis J.—
This was an action for damages for judicial eviction. The plaintiffsjoined as defendant with their own vendor (third defendant), thevendor to the third defendant (second defendant), and the vendorto the second defendant (first defendant). The learned District
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Judge gave judgment for the plaintiffs against the third defendant*but not as against the second and first defendants. The plaintiffsappeal against the dismissal of his action as against the seconddefendant.
The learned District Judge based his decision on a passage inVoet, 21, 2, 17 (Berwick 524):—"Not only purchasers and those
like them whohave lost by judicial decree a thing they have
acquired, but also their heirs, may sue the vendors and otherscommonly called auctores and their heirs when the obligation has
arisen from conventionbut the particular successors of .
purchasers, &c., for instance, cession of action has been made to-them by the first purchasers, ” from which he inferred that byBoman-Dutch law a purchaser who has been judicially evictedcould sue only his immediate vendor unless cession of action hasbeen made to him. There is, however, another passage in Voet,21, 2, 21, which explains the first passage:—" For no contracttook place between them unless cessions of action against the firstvendor had been made by the first to the last purchaser. "
In the present case the second defendant entered into a covenantwith the third defendant to warrant and defend the title to thethird defendant’s assigns. This covenant gives privity of contractbetween the second defendant and the plaintiff-appellant, and onthis ground alone the appellant is entitled to succeed.
Apart from this, however, I am of opinion the matter is one ofprocedure, and is governed by the Civil Procedure Code, sections14 and 18, which are designed to prevent multiplicity of actionsand to diminish the cost of litigation as much as possible. Underthese sections such numbers of persons may be made defendantsas may be necessary to enable the court effectually and completelyto adjudicate the question involved in the action, and the proceduresupersedes the Boman-Dutch procedure.
I would allow the appeal, with costs.
The appellants sue the second defendant-respondent and twoothers for the recovery of a sum of Bs. 5,405.09 as damages conse-quent on eviction from certain premises, which had been the subject-matter of a sale. By deed in 1905 the first defendant sold andtransferred the premises in question to the second defendant, whoin 1907 sold and transferred to the third defendant, who in 1909sold and transferred to the first and second plaintiffs. Theseplaintiffs had purchased as trustees, and had transferred thepremises to themselves and the other plaintiffs in their capacityof trustees. The first defendant filed no answer, and was in default.The second and third defendants in their answer pleaded (1) a
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1916. misjoinder in respect of the first and second defendants 7on therSoHKBissK ground that there was no privity of contract between them orA. J. either of them and the plaintiffs; (2) a misjoinder of defendants and
causes of action:.
The parties proceeded to trial on three issues. As regards themisjoinder, the only issue was formulated thus:“Is this action
not maintainable against the second and third / defendants on theground that there has been a misjoinder of defendants? ’’
The learned District Judge dismissed the plaintiffs’ action againstthe first and second defendants, and gave judgment against thethird defendant alone for the sum claimed. The plaintiffs’ appealis only as regards the dismissal of the action against the seconddefendant./
I think the appeal is entitled to succeed, with costs. The learnedDistrict Judge appears to have been of opinon (1) that there shouldhave been a cession of action frdm the second and third defendantsto the plaintiffs before the plaintiffs could sue; and (2) that therewas no privity of contract ^between the plaintiffs and the first and#second defendants. Two /passages from Voet, viz.', lib. 21, tii. 2,s. 17, and lib. 21, 'tit. s. 21, were cited in support of the- conten- •tion that there should have been a cession of action, and the learnedDistrict Judge appears to have accepted them as supporting thiscontention. I do not agree with this view. What Voet does sayin those passages is that, where a thing sold has passed through anumber of hands and the last holder is evicted, that the latter hasno right of action without cession, because “ no contract took placebetween them. ” I therefore think that, where there is privity ofcontract, the passages cited have no application. Here the deedsD 5 and D 6, by which tbe' first and second defendants respectivelysold and transferred the peniises in question, contain an expresscovenant that they would warrant and defend the title conveyedby them, not only in the case of their immediate vendees, but alsoof their assigns. Hence there was privity of contract as regards thecovenant to warrant title between the first and second plaintiffsand all the defendants. Even if the facts had been otherwise, I amdoubtful that the passages cited would have any application in thepresent day.
But it is clear that the issue as formulated is only concerned witha misjoinder .of defendants, and not of the right to sue successivetransferees, the contention being that there were several contractsof sale. This contention reduces itself to the same point, that theaction cannot be maintained unless there was privity of contractbetween the first and second plaintiffs and all the defendants. Theobservations I have already made show that this privity is introducedby the covenant expressly embracing the assigns of the parties.
HADJIAR et al. v. DON et al