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APPUHAMY v. SINGHO et al.
454—C. B. Matara, 11,645.
Vendor and purchaser—Notice to warrant and defend—May be writtenor verbal—Mere knowledge of action not enough notice*—Merelysummoning vendor as a witness not enough.
A vendee should call upon his vendor to .warrant and defend histitle to enable him to recover the puchase money from his vendorincase heshould suffereviction.Thedemand to warrantend
defend title need not necessarily be in writing, although, perhaps,itisthemost convenient formof making the demand.The
demand may be verbal—where the vendor is asked by the vendeeto intervene in the action and to stablish the title that has beenconveyed. Merely summoning the vendor as a witness does notconstitute a demand to warrant and defend, unlegs at the timethe summon? is served the vendor is informed, either verbally or inwriting, that the object of the summons is to enable him to interveneintheactionin support ofthe titlethathas been conveyed tothe-
lueconsequence of notgiving noticeto the vendor isnot
obviated by his knowledge of- the pendency of the suit.
fJlHE facts are set out in the judgment.
Balasingham, for the defendants, appellants.—The defendantswere admittedly not formally noticed to warrant and defend theirtitle in the former action. One of the defendants was merelysummoned to give evidence in the former case. That does notconstitute a notice to warrant and defend title. The mere fact thatthe defendants were aware of the pendency of the former case is notenough to enable the plaintiff to call upon them to refund thepurchase money. Counsel cited Adonis v. AkoTts1 and Baba Smnov. Sasird.*
Tinahamy v. Nonis,3 on which the Judge relies, does not governthis case. That case merely decided that notice to warrant anddefend need not necessarily be in writing. Here there was no noticeat all.
Bartkolomeusz,. for the plaintiff, respondent.—The defendants wereaware of the pendency of the action on their own admission. Theywere summoned to give evidence.' The Judge says that defendants’title'was easily demolished.
i (1889) 8 S. C. C. 197.* (1901) 5 N. L. R. S4.
a ( 909) 1 Cur. L. R. 216.
4J. N. A 99413 <8/f»0)
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IMS. Moreover, in this case the defendants have expressly covenantedAppuhamy to' “ answer regarding the disputes that may be raised by any person*• Singho whomsoever in respect of the said property, as well as pay compen-sation to the vendee. ’’ This Is not an action on an implied warranty,and no notice to warrant and defend is necessary.
. February 14, 1912. Grenier J.—
The appeal in this case involves a pure question of law. Theplaintiff alleged that the defendants sold to him a one-fifth share ofa certain land, and that he paid the sum of Bs. 30 and spent a sumof Bs. 4 for executing the deed of transfer and registering the same.The plaintiff also alleged that he instituted case No, 5,910, C. B.Matara, for a partition of the land, and that at the trial the defend-ants failed to warrant and defend the title to the property theysold, and the plaintiff lost the rights acquired by him by his deed.The defendants raised a question of law in their answer to the effectthat no notice was issued on them in case No. 5,910, C, B. Matara,to warrant and defend the sale by them. The defendants raisedsome points on the merits, but we need not trouble ourselves aboutthem on this appeal. When the case came on for trial there wasone issue of law which was agreed to by counsel on both sides. Theissue was framed in these terms:“ Is the action maintainable, as
the defendants were not noticed to warrant and defend title in
B. 5,910? ”
After some argument the Commissioner held that the defendantswere admittedly not formally noticed to warrant and defend title,but were aware of the partition action No. 5,910, and that firstdefendant was summoned as a witness. The Commissioner reliedupon a judgment of Wood Benton J., reported in the first volumeof the Current Law Reports, pages 216 and 217, and he was ofopinion that it was held in that case that it was sufficient that thenotice to the vendor constituted an implied demand to warrant,and defend title, and therefore the action was maintainable. TheCommissioner also added that he could not possibly say if thedefendants had no shadow of title, but at any rate it appeared tohave been easily demolished. Now, I think, it is good Boman-Dutch law that before a vendee can recover the purchase moneyfrom his vendor, in case he has suffered eviction, he should call uponhis vendor to warrant and defend his title. The demand to warrantand defend title need not necessarily be in writing, although,perhaps, it is the most convenient form of making the demand.The demand may be verbal where the vendor is asked by the vendeeto intervene in the action and to establish the title that has beenconveyed. I can find no authority for the- proposition that a mereservice of summons on the vendor constitutes a demand to warrant
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and defend, unless at the time summons is served the vendor isinformed, either verbally or in writing, that the objeet of the sum-mons is to enable him to intervene in the action m support of thetitle that has been conveyed to the vendee. In the case relied uponby the learned Commissioner in his judgment, reported in volume I.of the Current Law Reports, I do not understand Wood Benton J. tohave gone further than what the headnote to the judgment shows.The headnote is in these terms:—
The formal notice to warrant and defend title, to which the lessorof an evicted lessee, or the vendor of an evicted vendee, is entitled, xieednot be in writing. It is sufficient if the lessor or vendor receives actualverbal notice of the litigation, coupled with a- demand, express ornecessarily implied, that he should defend the title.
That, I think, is a correct exposition of the law, and is not adeparture from* well-established rules which regulate the giving ofnotice by the vendee to the vendor to warrant and defend 'title.Nowhere in the judgment is it laid down that the mere service ofsummons constitutes by itself a demand to warrant and defend.In the case of Adonis v. Akolis,1 Burnside C.J, has very clearlyinterpreted the law on the subject. He says:“ Merely summoning
him ”—that is, the vendor—“ as a witness in a suit is certainlynot a sufficient notice. Burge says (voL 11., p. 661): 'The con-sequence of not giving notice to the vendor was not obviated byhis knowledge of the pendency of the suit. * ” And in another partof his judgment he says:".I dissent from the'proposition at the
Bar that a vendee in an action like this has only to show that thevendor knew of the proceedings being taken, to fix him withliability, and that the vendee himself might remain quiescent,and allow judgment to. pass against him. That is not the law. ”Further on in his judgment he says:" As I have already pointed
out, it is absolutely necessary that the vendor should have full noticeof the action against the vendee and of the vendee's claim to bewarranted in it; and if, in an action against him, the vendee failto urge such exceptions as were competent to him, and whichwould have prevented Es“adversary from recovering against him,the vendor would not be liable; or if the vendee has afforded hisadversary the means of recovering by any imprudence on his part,he ceases to have any right to indemnity from the vendor. " It isonly reasonable that before you can call upon the vendor to payback the value of the land he has conveyed, you must give him theopportunity of warranting the title that he has conveyed.
For these reasons, I think that the decree of the Court below
must be set. aside, and plaintiff's action dismissed with* costs inboth Courts.
> (1889) 8 S. C. C. 197.
APPUHAMY v. SINGHO et al