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Present: Lascelles C.J. and Wood Eenton J.JAYAWARDENE v. AMERASEKERA72—D. C. Ghilaw, 4,452
Enormis lsesio—Sale by a person who knows the naive of the property forless than half the value—Action for cancellation of sale on theground that the whole consideration was not paid—When sale iscomplete.
A person who knows the value of hig property is not entitled torescission of the sale merely by reason of the fact that the price atwhich he has sold the property is less than half its true value.
The case is otherwise where the property is sold at a price grosslydisproportionate to its true value. In that case the law is on theside of the party who stands to lose by the transaction, and not onthe side of the party who stands to make an unconscionable profit.
On the execution of a notarial conveyance the sale is complete,and the mere fact that the whole of the consideration has not beenpaid cannot, in the absence of fraud or misrepresentation, affordground for the rescission of the sale and the cancellation of theconveyance.
i (1905) 8 N. L. R. 2Z3.
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fpHE facts are set out in the judgment.
Bawa, K.G. (with him V. Grenier), for appellant.
Walter Pereira, K.C. (with him G. Koeh), for respondent.
Cur. adv. vult.
June 18, 1912. Lascelles C.J.—
This action was instituted with reference to the sale of certaincoconut property by the plaintiff to the defendant. The priceagreed on was Es. 3,000, but the plaintiff contends that of this sumEs. 1,310 only has been paid; and on account of the defendant’sfailure to pay the balance she asks to have the sale rescinded, or inthe alternative judgment for the balance of Es. 1,690. She alsoavers that Es. 3,000, the price at which the land was sold, was lessthan half the true value of the property, and claims that the saleand the transfer of the property should be set aside on the ground ofUesio enormia. The defendant contends that he has paid in full theamount of the purchase money, and that the property was sold at afair value. The learned District Judge has disbelieved the plaintiff’sevidence as to the non-payment of the purchase money, and hasrejected the valuation, by which it was sought to prove that thelands were sold for less than half of their true value.
It is clear to me that the plaintiff cannot possibly succeed on herclaim to have the sale cancelled in the ground of enormia lasio. Iagree with the learned District Judge that the evidence by which itis sought to prove that the lands were sold for less than half theirtrue value is far from convincing. But even assuming this to havebeen proved, the plaintiff would not necessarily be entitled to thebenefit of the doctrine of enormia leeaio. It is not the law that wherea proprietor, who is in a position to know the value of his property,sells it for less than half of what is afterwards held to be its truevalue, he is entitled to come into Court and claim rescission. It isclearly laid down in Voet 18, 5, 17, that a proprietor who knows .thevalue of his property is not entitled to rescission merely by reason ofthe fact that the price at which he has sold the property is less thanhalf its true value. The proprietor, in such, a case, has only himselfto thank for any loss he may have suffered. As Voet puts it, " Nequedamnum intelligatur esse, quod quis siid culpd sentit. ” The caseis otherwise where the property is sold at a price grossly dis-proportionate to its true value. In that case the law is on the sideof the party who stands to lose by the transaction, and not on theside of the party who stands to make an unconscionable profit.
The plaintiff in this case was accustomed to the management ofcoconut property, and was by no means wanting in Business capacity.She must be taken to have known the value of her property, and is
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1912 therefore not entitled to rescission, even if it is proved that the pro-Laboellbs perty was sold for something less than half its value.
C.J. With regard to the claim for rescission, on the ground that the.Jayawardene consideration has not been paid in full, no authority has been citedAmeraaeker ^ us ^ which an action for rescission of a sale has been allowed on thisground. There can be no doubt but that on the execution of anotarial conveyance the sale is complete, and it is difficult to see howthe mere fact, if it be a fact, that the whole of the consideration hasnot been paid can, in the absence of fraud or misrepresentation,afford ground for the rescission of the sale and the cancellation of theconveyance. The learned District Judge has entirely discreditedthe evidence of the plaintiff as to the .non-payment of Es. 1,690 out• of the purchase money, and we are invited to review his finding inthis respect-
At the argument I was impressed- by the circumstance thatalthough the plaintiff was cross-examined at length with regard to -certain collateral matters, she was not confronted with and givenan opportunity of denying or explaining the defendant’s statementsas to the manner in which he says he paid the purchase money. Inthe same way the documents on which the defendant relies were putgenerally to the plaintiff, but her attention does not appear to have.been specifically directed to the passages in those documents which
support the defendant’s case. If the plaintiff’s evidence had been 'more convincing, I should have been disposed to have ordered a new
. trial of the issue with regard to the payment of the purchase money.But having regard to the character of the plaintiff’s evidence, andthe view of it taken by the District-Judge who heard the case, I havecome to the conclusion that a new trial ought not to be ordered.
At the appeal the plaintiff’s counsel tendered an affidavit sworn;by the plaintiff to the effect that she was in a position to strengthenher case by fresh evidence. The ,.new evidence consisted ’ of (1).-certain mortgages effected by the defendant on property comprised.in the sale, which mortgages, it is said, would prove that theproperty was worth more than double the amount for which it was.-sold; (2) the diary of the plaintiff’s late husband and the DambullaPostmaster’s account with him, which, it is saif1 would falsify thedefendant’s evidence that the plaintiff’s husband was not maintain-ing her; (3) a letter, which, it is said, would prove the falsity of the
defendant’s letter D 14. In my opinion this affidavit does not affordground for ordering a new trial. The evidence referred to in (1) isnot relevant in the view which I take of the plaintiff’s right to askfor rescission on the ground of enormis latsio. That referred to under“heading (2) is merely a collateral matter. That referred to in (3)might be important if the affidavit had contained reasonable-’particulars of the letter referred -■ to, but the affidavit gives noparticulars of the evidence it is alleged the letter. will furnish. In■toy opinion the appeal should be dismissed with costs.
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Wood Benton J.—
I have had the advantage of reading the judgment of my Lord theChief Justice, and I agree in the conclusion at which he has arrived.I do not think that any case has been made out for the cancellationof the sale on the ground of enormis Icesio, and I have come, althoughwith some hesitation, to the conclusion that the case ought not to besent back for a new trial on the issue as to payment of consideration.The evidence on both sides is unsatisfactory, but I am not satisfiedthat the decision of the learned District Judge is wrong.
JAYAWARDENE v. AMERASEKERA