119-NLR-NLR-V-17-DAWBARN-v.-RYALL.pdf
( sn )1914.
i
[Full Bench.] –
Present : Lascelles C.J., Pereira and Ennis JJ.DAWBARN v. RYALL.
368—D. 0. Kandy, 21,101.
Land sold by notarial deed—Deficiency of land^-rAction for damages forshortage of land—Prescription—Six years—Ordinance No. 22 of
1871, 88 7, 8t and 10.
The claim to compensation for any deficiency of land purported
to be sold by deed is not prescribed within six years, as the agree-ment is one founded on a written contract.
I
N this case the plaintiff sued defendant for damages, allegingthat there was a deficiency in extent of the land sold to him
by a notarial conveyance. The District Judge held that the claimwas prescribed., as it fell under section 10 of the Prescription Ordinance.,The plaintiff appealed.
Hayley, for the plaintiff, appellant.—The claim comes undersection 7 of Ordinance No. 22 of 1871, as the claim arises out ofdeed of sale. Section 10 is applicable to damages arising from tort,and not from contract. See Williams v. Baker. 1
This claim is based on the written contract of sale. Sale impliesputting the purchaser in possession. Under the Conveyancing Actof 1881, when a man sells a land in fee simple, many conditions areimplied. It could not be argued that those implied conditions arenot in writing merely because they have not been expressly statedin the conveyance. This action itself could not be brought unlessit 'were based on a written contract ; unless the action is based on awritten contract the whole case for damages fails.
The facts in Fernando v. Jayawardene2 are not on all fours withthi6 caso. There the purchaser was placed in possession and wasevicted some years after the sale.
1 (2*M) 8 S. C. O. 168.* 2 N. L. R. 309.
(. 873 )
Prescription was in issue in the first trial, but it was not pressed. ieie.The respondent has waived the question of prescription. Counselsited 4 M. <& W. 399.RyaU
Bawa, K.O. (with him AUan Drieberg), for the defendant,respondent.—The *' written promise ” in section 7 is ejusdenigeneris with the other contracts stated in the section. The wordsare “ written promise, contract, bargain, or agreement or otherwritten security.
The word 11 security " is interpreted in Wijesekere v. Perera. 1
[Chief Justice ; Can you not say that the deed is a security forthe handing over 300 odd acres ?] No.
This case cannot be distinguished from the case of Fernando v.Jayawardene. 3 The ratio decidendi in that case is applicable tothis case.
Counsel cited Thommasie v. Kavathipillai Murugaeoe, 3 360—D. C.
G*alle, April 6, 1881, Horsfall v. Martin,4, Berwick's Voet 172.
[Pereira J. referred to 4 S. C. C. 89.]
Hayley, in reply.
Our. adv. vult.
May 8, 1914. Lascellbs C.J.—
On the former appeal this case was remitted for trial on the footingthat the plaintiff was entitled, in virtue of the conveyance to him,to possessioir'of the property purported to be conveyed (subject tocertain exceptions), and to compensation for any deficiency whichmight be established. The learned District Judge, treating theclaim on this footing, has held that the claim is prescribed, and fromthis decision the plaintiff now appeals.
The question for decision is whether the claim is founded, as theplaintiff contends, on a “ written contract, " so that section 7 ofOrdinance No. 22 of 1871 is applicable ; or whether, as the defendantcontends, it is founded on “an unwritten contract," and is thusprescribed under section 8 of the Ordinance. The learned DistrictJudge has decided that the claim is prescribed under section 10.But on appeal it was not contended that section 10 was applicable.The argument was that section 8 was the material section ; and insupport of this contention we were referred to the ruling in Fernandov. Jayawardene. 2 But the decision in this case appeared to us to beso questionable that we reserved the point for consideration by aFull Court.
It is true that the facts in Fernando v. Jayawardene 2 are distin-guishable from those now under consideration, inasmuch as thepurchaser in that case appears to have been placed in possessionof the property which he had bought, and it was some years after
1 (1911) 14 N. L. R. 87.» (1883) 5 8. C. G< 174.
a 2 N. L. J2. 309.* (iqoo) 4 N. L. R. 70.
1914.
L^bobllbb
OJ.
Dawbarn r.' RyaU
( 374 )
the purchase that he was evicted. But the judgment of the learnedChief Justice amounts to a ruling on the principle of law involvedin the present case. The case was one where there was a writtencontract of sale from which a contract to warrant the title wasimplied by law. It was held that, although the contract of sale waain writing, the implied contract to warrant the property, not beingreduced to writing, must be considered as an unwritten contract,and so within section 8.
With the greatest deference to the learned Judges who decidedFernando v. Jaywwardene 1f I am unable to accept this view. Whatis the foundation of the plaintiff's claim for compensation ? Therecan be but one answer to this question, namely, “ the writtencontract of sale between the plaintiff and the defendant." The cir-cumstance that the obligation on the part 6f the seller to give quietpossession of the thing sold depends uffon a condition which the lawconsiders as inherent in a written contract of sale does not makethat obligation any the less dependent on the written contract ofsale. Without the written contract of sale this obligation wouldnot exist, and such an obligation, in a case where immovableproperty, is concerned, would not be proved without productionof a formal written contract of sale.
To look at the question from another point of view, the existenceof every contract depends upon a consensus between the minds ofthe contracting parties. How was this consensus effected withregard to the plaintiff's obligation -to put the defendant into posses-sion of a specific quantity of properly ? Clearly by means of thewritten contract of sale. Mr. Bawa, if I understood him aright,contended that the obligation arises from the relative status of theplaintiff and defendant as vendor and purchaser. But this is notgoing to the root of the matter. The obligation is contractual andthere was one contract only between the parties, namely, the winttencontract of sale.
We have been referred to several decisions, none of which seems tome to throw much light on the question. In Thommasie v. Kava-thipilai Murugasoe 2 it was held that a claim for purchase moneywhich was expressed in the conveyance to have been previouslypaid was a simple money debt which would be prescribed in threeyears. This does not seem to me to be inconsistent with theplaintiff's contention, for the conveyance in that case, so far fromimporting any promise to pay the purchase money, proceeded onthe footing that it was already paid.
In Horsfall v. Martin 3 the question was whether money due forgoods sold and delivered on an unwritten agreement was governedby section 8 or by section 9 of the Ordinance. It was held thatsection 9 was applicable, so that the action should have been brought *
*2W.L. B. 309.2 (1883) 5 S. C. C. 174.
3 (1900) 4 N. L. R. 70.
( 375 )
within one year. But the reasoning of this decision is not easily . 1914.reconciled with the decision of the Full Court in Kalahe Parene lViianege Louis de Silva v. Akmimene Pallia Chirugey Don Louis.1C.J,
For the reasons above stated I am of opinion that the present Dab&am v.claim is founded upon a written contract of sale, and that it is notprescribed.
The case must, therefore, go back to the District Court for the trialof the substantive question involved.
The appellant is entitled to the costs of the appeal, and also to thecosts of his appearance in the District Court on September S, 1913.
Pkrbzra J.—
I entirely agree. In the view taken by this Court in its judgmenton the last appeal in this case, the liability of the defendant to putthe plaintiff in possession of the entirely of the property sold resultsfrom the contract of sale between the parties, and the action istherefore an action on a “ written contract ” that might be broughtwithin six years in terms of section 7 of Ordinance No. 22 of 1871.So far as regards the question whether a particular undertaking isattributable to a particular contract, I fail to see the distinctionthat was sought to be drawn by the respondent's counsel betweenan express undertaking and one that is only implied by law from theterms of a contract.
Ennis J.—*
I entirely agree. The terms of the contract in this case wereevidenced by the written document, and anything implied by thewritten document is as much a part of that document as if separatewords had been used.
Sent bach
14S.C. C. 39.