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Present: Pereira J.
MENIKA v. ADAKAPPA CHETTY.
283—C. R. Badulla, 1,448.
Vendor and purchaser—Action by third party against purchaser—Noticeby purchaser to warrant and defend title—Defence abandoned attrial by purchaser as untenable–Duty of purchaser to- get himselfmade added party.
Where a vendor of a parcel at land, who by agreement or other-wise had become liable to warrant and defend his vendee's title,received notice from his vendees of an action against them, disputingtheir title to the land, it was his duty to have himself added as aparty to the case, or otherwise to do all he could to defend hisvendee’s title. After the service of such notice, the fact that thevendees, finding that certain defences were untenable, abandonedthose defences would not exonerate the vendor from his liabilities.
Ji FTP, facts appear sufficiently from the judgment.
Gunaratne, E. T. de Silva, and £7. W. Jayewafdene, for defendant,appellant.
Mendis and Bartholomeusz, for plaintiff, respondent.
Cur. adv. vult.
July 16, 1913. Pbbeiha J.—
The facts that I find disclosed in the record of this case and ofthe connected ease No. 113 render it unnecessary to consider manyof the questions of law raised in the course of the argument in-appeal. The notice issued in the old case to the present defendant
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was, I find, quite sufficient to enable the defendant to know that hewas required to warrant and defend the title of the defendants inthat case. The notice is at page 122 of the record, and it requiredthe present defendant to take notice that an action had beeninstituted by the plaintiff in that case claiming the land sold to thedefendants in that case by the present defendant, and a copy of theplaint was annexed to that notice. On the receipt of that noticeit was clearly the duty of the present defendant to apply to the Courtto have himself added as a party to the case, or otherwise' render tothe defendants in that case all the help that it was within his powerto render, and defend the title of his vendees against the attackmade on it by the plaintiffs. At any rate, the defendant shouldhave watched the progress of the case until its termination, and itwas not necessary to serve a fresh notice on him when the casereturned from appeal. At the second trial of the old case thedefendants in‘ it found it hopeless to contest the title of the plaintiffs,and limited the defence to the claim for compensation for improve-ments.. Thin was not a compromise as. the present defendant triesto make out, but a limitation of the contest to certain points onlyas. the present plaintiffs had found that the rest were untenable.The present defendant was not there, as he should have been, toobject to the proceeding, and it is not now in his mouth to say thathe was prejudiced. Clearly, the defendants in the old case werenot bound to adhere to what they found was. an; untenable position,when, especially, their vendor was not present to help them indefending the title conveyed by him to them.
I affirm the judgment appealed from with costs.
MENIKA v. ADAKAPPA CHETTY