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Present: Lascelles C.J. and Middleton J.AMERASEKERA v. RAJAPAKSE.42— D. C. ChilaWy 4,285.
Oral agreement to purchase land- at a Fiscal's sale and transfer to plaintiff—Plaintiff cannot compel purchaser to transfer land—Trust.
The plaintiff and defendant entered into a non-notarial agree*meat that the defendant should bid for and purchase land at aFiscal’s sale, and that plaintiff should abstain from bidding inopposition to the defendant at such sale, and that the defendantshould subsequently convey 12 acres of the land to the plaintiff.
In an action by plaintiff against defendant (who purchased theland at the Fiscal’s sale) to compel him to transfer the 12 acres,—Held, that plaintiff could not maintain the action in the absenceof a notarially executed agreement between the parties.
r J' HE facts appear in the judgment of the Chief Justice.
A. St. V. Jayewardene, for the plaintiff, appellant.—The learnedDistrict Judge had not inquired into the facts of this case ; he hasheld on an issue of law that the action could not be maintained asthe agreement was not attested by a notary. This Court held inOhlmus v. Ohlmus1 and in Gould v. Innasitamby2 that parol evidenceis admissible to establish a resulting or constructive trust where a
' (1900) 9 A L, Itf 183,2 (1904) 0 X, L, R. 177,
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transaction is intended to effect a fraud. The Judge should haverecorded evidence and then decided the question of law.
Sampavoy K.C., for defendant, respondent.—The appellant cannotcomplain that no evidence has been recorded in this case, as bothparties desired the Court to decide the question of law beforeentering into the facts.
'In the cases referred to by the appellant there was a trust ; theplaintiff had given the defendant money to buy the land. Thepresent is a pure contract to sell ; and there is no trust or fiduciaryrelation between the parties.
The question of fraud was not raised in the lower Court.
Mar. ,y, uni
. I nmrasckrrar. RajajHikse
A. St. V. Jayewardene, in reply.—In Ohhnus v. Ohlrnus there wasno issue as to fraud, yet the plea of fraud was upheld when it wasclear from the facts that there was fraud. [Lascelles C.J.—Whatfraud do you allege ?]. The plaintiff was prevented from biddingand purchasing the land by defendant’s promise. [Lascelles C.J.—In a sense there is some fraud in almost every case of breach ofcontract ; but that is not enough to justify the application ofthe principle enunciated in Gould v. Innasitamby. The defendantis not a trustee of the plaintiff in any sense.] The defendantbecomes plaintiff’s trustee when he asked him not to bid, andpurchased the land himself with a promise to re-convey. In Ohlrnusr. Ohlrnus the plaintiff' paid the defendant money because theamount was ascertained at the time of the agreement ; but here itwas not ascertainable at the time. Plaintiff is now prepared to payvalue. The payment of money by plaintiff to defendant at the timeof the agreement is not the test of the trust—suppose the defendantwas given credit at the sale !
Cur. adv. vult.
March 8, 1911. Lascelles A.C.J.—
In this case the plaintiff sues for a specific performance of a certainagreement entered into between himself and the defendant, and alsofor damages. In paragraph 3 of the plaint it is averred that on orabout August 27, 1908, an agreement was entered into between theplaintiff and the defendant above named, that the defendant shouldbid for and purchase at the Fiscal’s sale, which was to be held onAugust 28, 1908, sixteen allotments of high land aggregating about36 acres in extent, and that the plaintiff should abstain frombidding al the said sale in opposition to the defendant ; and thatthe defendant should, in the event of his becoming the purchaser,convey to the plaintiff' an extent of 12 acres thereout, immediatelyadjoining Danpitiya estate on the south, the plaintiff paying for itthe actual amount paid by the defendant at the said sale plus aproportionate share of the expenses incident to the said sale. Theplaint then goes on to aver that the plaintiff accordingly abstainedfrom bidding at the sale, and that the defendant became the
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Mur. 8,1911 purchaser of the allotments and obtained a Fiscal’s transfer therefor.Lascellks The plaintiffalso avers that he has been always ready and willing toC*J'» pay for the said 12 acres of land, together with a proportionateAmeraaekera share of the expenses of the sale. He then alleges that, relying onv. Bajapakse the agreement, he cleared and planted a portion of the land whenthe defendant falsely and maliciously and without reasonable andprobable cause caused the plaintiff to be criminally prosecuted in thePolice Court. The defendant in his answer denies all the avermentsin the plaint, and he gives a version of the transaction entirelydifferent from that of the plaintiff. Issues were then settled,the first of which was : “ Can the plaintiff maintain this actionin the absence of a notarially executed agreement between theparties ?” This issue was argued before the District Judge, whoheld that the parol agreement between the plaintiff and the defend-ant was of no force or avail in law, and dismissed the action withcosts. The plaintiff now appeals from the judgment of the DistrictJudge. In his argument Mr. Jayewardene has relied largely on thecases of Gould v. Innasitamby1 and Ohlmus v. OhlmusNow, in boththese cases the facts are widely different from the facts of the presentcase. In the former case the plaintiff employed the defendant topurchase the property for him, and it was understood between theplaintiff and the defendant that the plaintiff should pay the purchasemoney and that the defendant should get a conveyance in his ownname and subsequently re-convey the property to the plaintiff; inother words, the defendant was a trustee for the plaintiff, and theCourt held that the plaintiff was entitled to maintain the action onthat ground.. In Ohlmus v. Ohlmus the facts are similar. Therethe testator of the plaintiff bought a land and obtained a grant in thename of the defendant, who was to hold the property in trust for theplaintiff-testator, and was to convey it at his request. There, again,it was a question of a trust, and the Court enforced the trust,although there was no notarial agreement. Here it is impossible tocontend that the defendant was a trustee of the land which he pur-chased. He had received no advance of money from the plaintiff,The only benefit that he received from the plaintiff under the agree-ment was that the plaintiff should not compete with him and soenhance the price at the auction. No authority has been cited, andI have been unable to find any, in which a benefit of this kind hasbeen held sufficient to charge the defendant with a trust, and theagreement, I think, must be construed in its plain and naturalmeaning. It is simply an agreement that the defendant, after. having bought the land, must re-convey to the plaintiff. It is anagreement for an interest in land, and in order to be valid it shouldhave been embodied in a notarial document. I am of opinion thatthe judgment of the District Judge is correct and should be affirmedand that the appeal should be dismissed with costs.
1 (1908) 9 N, Lt Rt 188,
* (1906) 9 N. L, Rf 117,
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I entirely agree with what has fallen from the Chief Justice, andhave only to add that there seems to have been an averment in theplaint of a false and malicious prosecution by the plaintiff of thedefendant. There is, however, in the prayer of the plaint no claimfor damages on that ground. The claim for damages which appearsis evidently in respect of what is alleged to have been an injurydone to the plaintiff by the defendant’s action in respect to theagreement between them before the auction. It is hot possible,therefore, to send this case back, I think, for trial of what wouldotherwise be an action for malicious prosecution. .
Mar. 8, 1011
AMERASEKERA v. RAJAPAKSE