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Present: Jayewardene A.J. and Akbar A.J.WIMALASURENDRA v. DIAS.
122,122A—D. C. Galle, 21,775.
Administrator—Sale of property with leave of Court—Warranty-Liability of administrator.
Where property was sold by the defendant as administratorof an estate, with leave of Court and on conditions of sale approvedby Court, and where after the sale was confirmed, the defendantexecuted a dee*1 in favour of the plaintiff containing an expressclause by which he covenanted to warrant and defend title,although the conditions of sale had no reference to such a covenant.
Held, that the estate was not bound by the act of the defendantand that the defendant was personally liable on the covenant.
"PLAINTIFF was the purchaser of a land belonging to theestate of one Peter Weerawickrama Gunawardene, whichwas sold by the defendant, as administrator with the leave of Courtand on conditions of sale approved by Court. The conditionsof sale as approved by Court contained no reference to a specialcovenant to warrant and defend, but the administrator afterthe sale was confirmed executed a deed containing the warrantyclause. Plaintiff, being unable to get possession, instituted evictionproceedings against the disputant calling on defendant to warrantand defend, but this case proved abortive. Subsequently plaintiffinstituted this action against defendant as administrator claimingdamages for the breach of the covenant to warrant and defendcontained in the deed. The District Judge dismissed the actionx against tho defendant as administrator, but gave judgment againsthim in his personal capacity.
Drieberg, K.C. (with him Chas. de Silva and Jansz), for plaintiff,appellant.—Apart from the special insertion of the warranty clausethe contract of sale is incomplete as no vacant possession has, beengranted, and the estate is therefore liable. The sale is only comple teafter “ vacant possession ” u granted, and once this has been donethe seller must warrant and defend against eviction, Jamis v.Suppa Umma.1
[Akbak A.J.—In James v. Suppa Umma (supra), there is animplied warranty which is not the case here.]
The administrator, having warranted and defended, his liabilityis analogous to that of an executor de son tort.
i 17 N. L. R. 33.
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Counsel cited Perera v. Amaris Appu,1 Francisco v. Peresenty,aKrause v. Pathumma.s
H. V. Perera, for defendant, respondent.—The action is againstthe defendant as administrator, and the judgment has gone againsthim personally, or in other words, judgment has gone against onewho was no defendant. The defendant is prejudiced, as other issuesmight have arisen.
Drieberg, K.C., in reply.—
November 27, 1925. Arrar A.J.—
This is an action brought by the plaintiff against the defendantas administrator of the estate of one Peter Weerawickrama Guna-wardene. The plaintiff was the purchaser of a land belongingto the estate of the deceased, which was sold by the defendant asadministrator with the leave of the Court, and on conditions ofsale approved by the Court.
Although an administrator is not bound in law to warrant anddefend title and such a covenant cannot be implied (see Franciscov. Peresenty (supra)), and although the conditions of sale as settledby the Court contained no reference to a special covenant to warrantand defend, the administrator after the sale was confirmed byCourt executed a deed in favour of the plaintiff containing an expressclause by which he covenanted to warrant and defend title. Plain-tiff not being able to get possession of the property institutedeviction proceedings against the person who was disputing histitle, and called on the defendant to warrant and defend. Thedefendant took an active part in these proceedings and was addedas a co-plaintiff in the eviction action. He filed a statement, andotherwise helped the plaintiff in this case, which ultimately wentup in appeal, and there the present plaintifiE lost his case. Thenet result of this litigation was that although the defendant in theeviction case only ^ claimed 9/100 shares of the land, the* plaintiffdid not get possession of the land and he had to pay the full costsof the abortive trial and appeal; moreover he found himselfsaddled with a land which other claimants were likely to claimand for the whole of which he had paid full consideration.
The present action is brought by the plaintiff against the defend-ant as administrator and the claimjs for damages for the breachof the special covenant to warrant and defend contained in thedeed of sale. The District Judge has dismissed the claim againstthe defendant in his capacity as administrator, but has givenjudgment against him in his personal capacity for. Bs. 967, but
11 S. C. C. 54.
* 5 N.L. R. 162.
• 2 S.C. G, 1.
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There are two cross appeals in this case, one by the defendant(122) and the other by the plaintiff (122a).
Mr. Drieberg, for the plaintiff, argues that the District Judgewas wrong in rejecting his claim against the estate. No doubtthe estate has benefited by the payment of the full considerationby the plaintiff, but the law is clear on the point that an adminis-trator is not bound to warrant and defend, and that such a covenantcannot be implied. Under our law an administrator has no powerto sell immovable property without the leave of Court (sec Krausev. Pathumma (supra), and the practice has sprung up whereby eventhe conditions of sale have to be approved by the Court, and the saleconfirmed by Court. All this was done in this case. But, as 1 havealready said, the conditions of sale as approved by the Court con-tained no reference to an express warranty clause, and even when thesale was confirmed by the Court, no mention was made of any suchclause. And yet, the administrator who is a proctor practisingin Galle, when he signed the deed of conveyance set his signatureto a document containing an express warranty clause. I do notthink that an administrator can bind the estate by such an onerouscovenant without getting the express consent of the Court for theinsertion of such a clause, and I think the District Judge was there-fore right in refusing to allow a decree in this case, which will havethe effect of binding the estate of the deceased. The TestamentaryCourt had allowed the sale, settled the conditions of sale, andfinally confirmed the sale. The plaintiff made no attempt to askfor relief from the Testamentary Court when he found that he hadbought a land burdened with the germs of litigation, probablybecause he knew that the express covenant had not the imprimaturof the Court, but instead he rushed on to litigation and even tocarry the case to the Court of Appeal with the active connivanceand approval of the defendant. In these circumstances it seemsto be inequitable to allow the estate to be charged with the paymentof all the damages and costs incurred by the plaintiff, as the resultof the futile sale and the subsequent unsuccessful litigation.
Mr. Drieberg next argued that he was entitled to claim damagesagainst the estate not on the footing of the special covenant, buton the ordinary obligation which always arises in a contract ofsale of land, namely, the necessity of giving vacant possession tothe purchaser.
The short answer that one can give to this contention h that theclaim in the lower Court was not framed on this footing but on thespecial covenant. Then there is the further question whetherin sales by an administrator, the administrator not being boundto warrant and defend title, the covenant to give vacant possessionmust not be expressly given, and that with the leave of Court,I caiinot see why the two covenants should be treated from two
different standpoints; nor do I think that the dictum of WoodBenton J. reported in 17 N. L. R. p. 33 applies to the case of sales akbabAJ*by administrators.
To turn now to the appeal by the defendant against the judgment eurendra e«of the District Court wherein he has been personally condemned DiaBto pay damages. I think that the District Judge has on the wholedone substantial justice in this case. It is true that the defendantwas sued in his capacity as administrator, but he was sued on aspecial covenant which he had directly undertaken without theleave of the Court. He had further endorsed this special contractby taking part in the eviction proceedings and by doing everythingpossible to make the plaintiff believe that he had embarked ona right course of action. Although there was no issue of estoppelframed in this case, I do not think it will be equitable to allow thedefendant to succeed on such a technical point as Mr. Perera urged,namely, that this client was noticed to warrant and defend, and wassubsequently sued in this case in his capacity as administrator.
I do not think the notice can be' so construed, nor do I think thatthe mere fact that he was described as administrator in this actionhas so far prejudiced him as to entitle him to win on this appeal.
The defendant had full notice of the fact that he was sued onthe covenant and for damages which the plaintiff had incurredwith his knowledge and acquiescence. After all the questionmust turn on the consideration whether the defendant has suffered^ any prejudice by the course taken by the plaintiff. The wholetrouble has arisen owing to the wrong conduct of the defendantin agreeing to the express covenant to warrant'and defend withoutthe leave of the Court. His liability seems therefore to be analogousto that of an executor de son tort, and it seems fair that he shouldbe held liable even by reconstituting the action as the DistrictJudge has done in his judgment without putting the parties tofurther expense. Indeed if the technical objection raised by Mr.
Perera is carried home to its logical conclusion, Mr. Perera wouldappear not to have any standing at all to appear in this appealin the absence of a fresh proxy given by the defendant in hispersonal capacity.
Whatever inconvenience the defendant may have suffered by thereconstitution, as the District Judge calls it in his judgment, asI said, I do not think the defendant has suffered any materialprejudice and the District Judge has very properly taken this intoaccount in not awarding the plaintiff any costs.
I think, the proper order to make in this case will be to dismissboth appeals, but without any order as to the costs.of the appeals.
Jayewabdene A.J.—I agree.
WIMALASURENDRA v. DIAS