A. St. V, J aye war dene, for first defendant, appellant.
Drieberg, for respondents.
Cur. adv. vult.
( 405 )
action for the recovery of the loss sustained by the plaintiff byreason of the failure on the part of the defendants to warrant anddefend his title to the eleven-acre lot referred to above. Numerouscases 'were cited and relied on as showing that the plaintiff hadmistaken his remedy. It was contended that the plaintiff shouldhave • sued his vendors, the defendants, in the first instance, andnot incurred the expense of suing the so-called trespassers. Now,the cases cited were mainly those of lessee against lessor or vendeeagainst vendor, where the lessor in the one case or the vendor in theother had placed hie lessee or vendee in full physical possession ofthe laud leased or sold by him. These cases can have no applicationwhatever to the present, because in this case, admittedly, theplaintiff was not put in possession of the land sold to him by thedefendants. As * I have endeavoured to explain in my judgmentin the case of Fernando v. Perera,* under our law the contract ofsale of land is complete on the execution of a notarial conveyance,followed by the delivery of the conveyance by the vendor to thepurchaser, and it is now well-settled law (see Appuhamy v. Appu-hamy a) that it is not necessary that the purchaser should be placedin physical possession of the land sold to enable him to sue a thirdparty in ejectment. That being so, it was quite competent to theplaintiff in the present case to sue, as he did, the defendants in caseNo. 10,310, and call upon the present defendants to warrant and'defend his title. In some of the cases cited there are no doubt dictashowing that in a case like the present the vendee might, in thefirst instance, sue the vendor, requiring him to give him physicalpossession of the land sold, but there is nothing in those cases toshow, that that is the vendee’s only remedy, or that the vendeemight hot sue the so-called trespasser in ejectment calling upon thevendor to warrant and defend his title, and that, having failed in.the action, he might not sue the vendor for the loss sustained byhim.'. On the other hand, in the case of Ratwatte v. Dullewe3 Middle^ton J, says: “I have no doubt that if the plaintiff had acceptedthe cohveynace tendered by the defendant he might maintain hisaction against Dullewe (that is, the alleged trespasser) for declarationof title, and might have called upon his vendor to warrant anddefend the title conferred.” That is exactly what, in effect,happened in the present case, and I have no hesitation in sayingthat the plaintiff’s claim is well founded.
Then, it has been argued that the damage awarded is excessive
do not think so. If, as shown above, the plaintiff was entitledto . bring action No. 10,310 calling upon the defendants to warrantand defend his title, it follows that he was equally entitled to recoverfrom the defendants the costs of that action in khe event of failure init. The rule of law is that when a debtor or obligor cannot be charged 1
1 (1914) 17 N. L. R. 161.» (1907) 10 N. L. R. 304 :
* 3 8. C. C. 61.3 A. O. B. 99.
Pkbkiba J.
Balasuriyav. Appuhami
( 406 )
1014. with fraud, and is merely in fault for not performing his obligation*t either because he has incautiously engaged to perform something-r—( which it was not in his power to accomplish, or because he hasafterwards imprudently disabled himself from performing hisengagement, moderation should be exercised in the assessment ofthe damages. As a rule, the creditor or obligee would be allowedonly what might be termed his out-of-pocket expenses. (Pothier1, 2t 3.) In the present case the plaintiff appears to have claimedno more than, a proportionate share of what he had paid for thewhole land and his costs of action No. 10,810.
A more substantial objection to the decree in the mouth of thefirst defendant is that, while in his plaint the plaintiff prayed thathe (the first defendant) be condemned with the second and thirddefendants to pay the plaintiff the damages claimed, the decreeabsolves the second and third defendants from liability, and con*demns the first defendant to pay the whole amount claimed. TheDistrict Judge discusses the facts and circumstances attendantupon the execution of deed No. 8,492, and arrives at the conclusionthat the only party liable in damage is the first defendant; but thequestion is, whether by his decree he could have placed the firstdefendant in a worse position than he would have been if the prayerin the plaint was simply allowed to its fullest extent. I need notpause here to inquire whether in the case of joint judgment-debtorsthe full amount of the decree can, in the first instance, be recoveredfrom any one of them. It is sufficient to take into account thefact that, either, .one of several joint judgment-debtors is liable topay only a proportionate share of the debt, or, if he is obliged topay the whole debt, he is entitled to contribution from his co-debtors.So that, when the plaintiff's claim against the second and thirddefendants' was dismissed and the first defendant was condemnedto pay the whole amount claimed by the plaintiff, a liability- wasimposed on him larger than that which the plaintiff claimed a rightto impose. That could not, in my opinion, be done without a properamendment of the plaint sufficiently indicating to the first defendantthe full extent of the claim as against him. Before judgmentwhen the plaintiff found that his claim against the second and thirddefendants was one of doubtful validity, he should have amendedthe plaint by either striking out their names from the plaint, orclaiming alternatively from only the first defendant the full amountof the damage mentioned in the plaint. The plaintiff’s counselhas moved to be allowed to amend th.e plaint accordingly at thepresent stage of the case, submitting that the omission to amend itat the proper time was due to inadvertence. The amendment, inmy opinion, should not be made in this Court, and in the circum-stances, I see no objection to the case being remitted to the DistrictCourt to enable the plaintiff to make the necessary amendment. Iwould set aside the judgment appealed from, and remit the case to
the District Court for further trial after such amendment of the • *****
plaint as the plaintiff might desire to make, and judgment anew paanmaJ.
The costs so far in the Court below should, I think, abide the event, v. Appuhamiand I would let each party bear his own costs of this appeal.
La8Celi.es C.J.—I agree.
Sent back.