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May 13 and17.
SILVA v. LOKU BANDA.D.G., Kandy, 13,026.
Warranty—“ And if any dispute, arise, I promise, ” Ac.—Meaning of “ andIntendment of vendor.
Where defendant sold a land to plaintiff by a deed which, after’reciting that the vendor had not done anything whereby. the salemight become void, covenanted as. follows: " and if. any dispute wereto arise, I promise that I, &c., shall give the land freed from disputes ”—
Held, that the word “ and ” meant furthermore, and should be con-strued as if the vendor intended to warrant title, not only in respect ;pfhis own acts, but absolutely in regard to any dispute that may arise.
In doubtful cases the intendment must be construed against thevendor.
HIS action arose out of a warranty clause in a deed of saleby which the defendant purported to sell to plaintiff three
lands adjoining each other, which the deed declared were “ held" and possessed by me (the defendant) uninterruptedly by right of‘ inheritance from my deceased father Loku Bandara Mahatmaya ”,and it was provided, “ and if any dispute were to arise, I promise” that I, or my heirs, administrators, and assigns, shall give the” land freed from disputes ”.
The plaint alleged that certain persons being in possession ofthe lands sold by defendant, the plaintiff sued them in ejectmentin action No. 9,334 of the District Court of Kandy, and gave duenotice of the action to the present defendant, but that he failed towarrant and defend his title, and the District Court upheldplaintiff’s title under the defendant only to an undivided one-ninthof one land and one-sixth of the other two lands, and cast plaintiffin costs, whereby plaintiff paid Rs. 450 as costs.
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Plaintiff prayed for the recovery of Rs. 450 incurred as costs 1901.and Rs. 425 as the value of the shares of the lands to which May IS and
the defendant failed to establish his title; or in the alternative 1
for the rescission of the sale and the recovery of the pricehe paid to the defendant for the entirety of the lands togetherwith interest.
The District Judge dismissed plaintiff’s action in the followingjudgment: —
“ As to the claim for damages, the covenant for title is in effect" the same as in the transfer which formed the subject of dis-“ cussion in the Badulla case De Silva v. Ossen Saibo reported in** 1 S. C. R. 201. The words of the covenant [given above] must“ be read as a whole, and they contain only a covenant as to the
defendant’s own acts. The covenant amounts to this:“ I have
“ ‘ not done anything to invalidate this transfer. Further, if I“ ‘ have, I agree for myself, my heirs, and administrators, to settle“ ‘ the dispute ’. The plaintiff, however, has declared on an“ express covenant for title, which is not contained in the transfer.
“ The action must be dismissed with costs ”.
The plaintiff appealed.
Van Langenberg, for appellant.—The main contention in thecase was that there was a distinct covenant to warrant and defendtitle, not only where his own act invalidated it, but the acts ofanybody else. The defendant said in his deed in effect:“ I have
not done anything to invalidate the title. And, that is, further-more, I promise to warrant ”. These words distinguish betweenhis own acts and those of any one else. They mean “ furthermore,if there is any other ground by which title is vitiated, I will seeyou safe through ”.
No appearance for respondent.
Cur. adv. vult.
May 17, 1901. Browne, A.J.—
In De Silva v. Ossen Saibo, 1 S. C. R. 201, the conveyanceexecuted by the defendant in respect whereof he was suedcontained the clause:—“ I do hereby declare that I did no actwhatever previously to invalidate this sale, and do agree to settleall disputes that may arise in respect thereto ”.
It is not stated in the report in what language this covenantwas expressed. If it were in Sinhalese, it might be possible thatthere would not be so very much if any difference in respect tothe crucial conjunction ‘ and ’ between that covenant and theone here sued upon in defendant’s conveyance to the plaintiff
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Jtfoy 13 and
The latter, corrected by the interpreter of our Courts, is as follows: —“ I have not heretofore done anything whereby the sale maybecome void. Furthermore (in the District Court that wordwas translated ‘ and ’), if any dispute were to arise, I promise that
or my heirs, administrators, and assigns, shall give the land freedfrom disputes.”
In the Badulla case it was held that the words first quoted dienot contract to warrant and defend the plaintiff’s title, but was acovenant for the title limited to the defendant’s own acts. Forthough, said Lawrie, J., if the latter portion stood alone, it wouldbe construed to be a general covenant for title, the clause had to-be read as a whole, and as such it contained a limited covenantonly. Here, however, I consider that “ furthermore ” should beregarded as a disjunctive (seeing that in doubt the intendmentmust be against the vendor), and that the later clause, which inform is more precise than was the Badulla agreement, should beconstrued to be absolute for every contingency not limited to thecovenanter’s own acts.
I would therefore set aside the dismissal with costs, and remitthe action to the District Court for the plaintiff to tax his bills ofcosts as suggested by the learned District Judge.
Moncreiff, -J.—I agree.
SILVA v. LOKU BANDA