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Present: De Sampayo J.
JINADASA v. DURAYA.
314^-0. R. Matcde, 12,325,
Vendor and‘purchaser—Actiondeevictione—Noticeby purchaser to
vendor maybeverbal—Purchaseragreeing• toreferring case to
arbitration—Does action de evictione lie ?—Purchaser not appealingA purchaser is not entitled to bring an action de evictione againschis vendor ifhehas agreed toarbitrationinthe action brought
against him by the third party.
“ If the purchaser is defeated in an action and does not appeal,or having appealed does not press the appeal, in a case where thevendor has not intervened or undertaken the defence, he is like*wise deprived of any remedy against the vendor. *’
The notice which a purchaser has to give a vendor to enable himto bring an action de evictione against his vendor ‘may be verbal :it need not be in writing.
rJ1HE facts are set out in the judgment.
AT. TF. if. de Silva, for defendant, appellant.—The notice givenin this case was insufficient. The evidence shows that the noticewas not timous. It was given after-the parties had agreed to referthe case to arbitration, too late to enable the vendor to undertakethe defence. This case does not come within the principle of
1 (7511) 14 N. L. 72. 397,a (7573) 16 N, L. 72. 236.
Tinanhamy v. Nonis,1 as there was no clear demand that defendantshould defend the title he had conveyed. Adonis v. Arolis,2Babasinno v. Sasira.3
Even if the notice be held to be sufficient, the plaintiff cannotrecover, as he has referred the case to arbitration. Voet 21, 2, 30 ;Berwick's Voet 586. It is the duty of the purchaser to defend thetitle conveyed to him “ with all his power. ” If he refers the case toarbitration, or voluntarily surrenders the thing sold, or compromises. the suit, he cannot be said to do all that lies in his power to maintainthe possession he has received, and thus loses his rights against thevendor; similarly, if he fails to appeal, or having appealed abandonsthe appeal, he cannot recover. (Voet 21, 2, 20, 30.)
Sansoni, for plaintiff, respondent.—The notice given was quitesufficient. The circumstances are almost identical with those inTinanhamy v. Nonis.1 This is a question of fact, and the Commis-sioner has found for the plaintiff. It has been held that thecompromise of a suit does not deprive the purchaser of his rights ifthe compromise was the best thing that could have been done underthe circumstances. The law does not expect a vendee to fight ahopeless case.
Gut. adv. vvlt.
January 9, 1918. De Sampayo J.—
An interesting point of law arises in this case. The defendant, .bydeed dated January 8, 1916, sold a certain land to the plaintifE fora sum of Rs. 150 and put him in possession thereof. Thereafter oneSaranalis Silva sued the plaintiff for declaration of title to the landin action No. 11,808—C. R. Matale, and under the decree entered inthat case the plaintiff was ejected. Thereupon he brought thisaction to recover from the defendant the price paid and the amountof legal expenses he incurred in defending the previous action.
In order to entitle a purchaser to bring an action de evictione, hemust have given timely notice to the vendor of the action broughtagainst him, by any adverse claimant. It has been held that this,notice need not be in writing, but may be verbal, provided it isbrought home to the vendor that he is called, upon to come in anddefend his title.. Tinanhamy v. Nonis1 The plaintiff in this casedid not give a written notice, but he stated in evidence that on thereceipt .of the summons he gave verbal notice. The facts statedmay be taken as proving that due notice of the action was given tothe defendant. <There is, however, another point which needsconsideration. The object of the notice is, of course, to enable thevendor to intervent in the action and undertake the defence, orotherwise to assist in Hie litigation (ut lite assistat) and establish histitle. Voet 21, 2, 20 ; 3 Maasdorp 162. Whether or not the vendor
1 (1909) 1 Cur. L. S. 216.
*5N.L. B. 34.
* 8 S. C. C. 197.
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in pursuance of the notice comes in and defends the title, the pur-chaser is bound to make a proper defence himself, and do his bestin the case. A. corollary of this rule is the further condition that thepurchaser should not so conduct the case as to make it useless orimpossible for the vendor to intervene and defend his title. Accord-ingly he will net be entitled to bring an action de evictione againsthis vendor if he has agreed to arbitration in the action broughtagainst him by the third party. Voet 21, 2t SO. The same passagein Voet shows that if the purchaser is defeated in the action anddoes not appeal, or, having appealed, does not press the appeal, in acase, where the vendor has not intervened or undertaken the defence(ab8ente venditore), he is likewise deprived of any remedy against thevendor. Now, it appears that the action No. 11,808, in which thedefendant did not intervene notwithstanding the notice, was byconsent of the parties, and on their joint application, referred to. arbitration, and judgment went against the plaintiff in accordancewith the arbitrator's award,”and, of course, there was no appeal, asnone could indeed be taken from a judgment entered in terms of an'award given on a voluntary reference. It may be mentioned thatthe defendant was subpoenaed to give evidence before the arbitrator,but that fact does not affect, the question. I think that under theBoman-Dutch law, which Applies to this case, the plaintiff is in thecircumstances not entitled to make the present claim against thedefendant.
The judgment is set aside and plaintiff’s action dismissed, withcosts in both Courts.
JINADASA v. DURAYA