037-NLR-NLR-V-33-DE-SILVA-et-al.-v.-ABEYTILEKE-et-al.pdf
164
AKBAR 3.—Dt Silva v. Abeytileke.
1931Present: Akbar J.
DE SILVA et al. v, ABEYTILEKE et al.
59—C. R. Balapitiya 18,092.
Evidence—Conveyanceofland andhouse—Errorindescriptionofhouse—Falsa
demonstrate non nocet.
Where a deed of transfer conveyed to the transferee certain undividedshares of thesoiland “ thewhitewashed tiled houseof32 feetin
length and 49feetin breadthstanding thereon", andit transpiredthat
there was onlyonewhitewashedtiled houseonthe landbutthat itvwas
32 feet in length and 72 feet in breadth,—
Held, that title to the house passed to the transferee despite the error in description.
T
HIS was an action for declaration of title to a house against theadded defendant who sold to the plaintiffs. certain undivided
shares of the soil and a tiled house 32 feet in length and 49 in breadthstanding thereon. There was only one tiled house on the land but it1 Moody Crown Cases 281 and 168 ; English Reports 2273,
AKBAB J.—De Silva v. Abeytileke.
155
was 32 feet in length and 72 in breadth. The question for determinationwas whether the vendors intended to convey the whole tiled house tothe plaintiff. The learned Commissioner of Bequests held that theplaintiffs were only entitled to a portion of the house, 32 feet in lengthand 49 in breadth.
M.C. Abeywardane, for plaintiffs, appellants.—The appeal involves theconstruction of a deed by which certain shares of a land and " the white-washed tiled house of 32 feet iu length and 49 feet in breadth standingthereon ” were conveyed to the appellant. There is only one house onthe land in question, and that a structure 32 feet in length and 72 feet inbreadth. The trial Judge held that the plaintiffs were bound by the'terms of their deed and were only entitled to shcb portion of the housein question as is 32 feet in length and 49 feet in breadth. It is submittedthat the finding is wrong. This is a case of “ falsa demonstratio nonnocet * What was conveyed was “ the house The subsequent mis-description cannot alter the effect of that conveyance. The house wasenlarged to its present proportions long anterior to the conveyance tothe oppellants. . The erroneous description has probably been copiedfrom an earlier deed. A reference is made to the earlier deed, in the schedule*attached to our document of title. That deed, however, has not beenproduced but that is immaterial. The principles of construc-* tion in a case like this were very lucidly expressed by Lord Sumner inEastwood V. Ashton1. See also Bulner v. Schokman2.
A. Rajapakse, for defendant, respondent.—-The case of Eastwood v.Ashton is really in my favour. The appellants are not entitled to the*relief they pray for. The furthest they can go is to make a claim forcompensation, vide Fernando v. Sumangala3. The principles ofconstruction in a case like this were considered by Voet in bk, XVIII.,c. 7, tit. I. Under the Boman-Dutch law no quantity is mentioned, whena specific property is sold. If a declaration of quantity is mentioned,there is either a provision that that declaration is not to be strictlyadhered to, or a mention of the boundaries of the property sold.
The appellants are purchasers of undivided shares of the land on whichthis house it built. As such, they cannot maintain this action withoutjoining the other co-owners.
M.C. Abeywardane, in reply.—The question of co-ownership does not-arise. It was no_t in issue at the trial. Nor is there any averment inthe pleadings dealing with it. The passage in Voet has no application-to the facts of the present case. Voet was there dealing with the case-of land. The argument in the passage cited can only apply to land.The Boman-Dutch authorities nowhere deal with the case of a house.
October 15, 1931. Akbar J.—
In this case the appellants claimed a house by right of purchase fromthe added defendant-respondent and some others. According to thedeed of purchase what was conveyed was certain undivided shares ofthe soil and “ the whitewashed tiled house of 32 feet in length and 49*feet in breadth standing thereon which we the said …. areentitled to …. ’*
1 (7915) A. a 900.
{1920) 22 N. L. R. SO. .
* V920) 22 N. D. R. 22.
156
A.KBAR J.—De Silva v. Abeijtilr.kr.
There is only one whitewashed tiled house on the land in question butit is 32 feet in length and 72 feet in breadth. The whole question iswhether the intention of the vendors was to convey the whole tiled houseor only 49 feet thereof. The respondent admitted in evidence that theadditions were made about 15 or 16 years ago and that originally thetiled house was 49 feet in breadth. Further, she admitted that, beforethe sale to the appellants, the whole house was rented out, i.e., the whole72 feet of the house was let out prior to the sale to the appellants andthat the respondent began letting out the disputed portion about twoveers ago, i.e., after the sale to the appellants. The whole question is asregards the identity of the house which was intended to be sold. To mymind the words “ the whitewashed tiled house ’’ are conclusive and theadditional dimensions given wrongly cannot affect the description of thehouse given earlier. If one were to accede to the proposition of therespondent, what portion of this 72 feet is to be held to have been sold?Is it 49 feet measured from the high road, oi from the opposite end"’Or are 49 feet to be carved out from the whole house? Who is to decidefrom what part it is to be cut out? As I have said, the clear intentionwas to sell the whole house on the land and the 49 feet was perhaps taken■from the description given in the old deed. In the case of Eastwood v.Ashtcn.1 Lord Sumner quoted wjth approval certain English decisions•as follows:—" My Lords, the principle on which this case was decidedin the Court of Appeal was thus stated by Parke B. in Llewellyn v. Earlof Jersey. As- soon as there is an adequate and sufficient definition,with convenient certainty, of what is intended to pass by a deed, anysubsequent erroneous addition will not vitiate it; according to themaxim falsa dcmonstratio non nocet, to which the words cum ds cor poreconstat should be added, to do the maxim full justice. In Morell v.Fisher, where this principle is repeated, it is further said, ‘ The charac-teristic of cases within the rule is, that the description, so far as it isfalse, applies to no subject at all; and so far as it is true, applies to oneonly.' It is thus stated by Romer J. in Cowen v. Truefitt, Limited.
' In construing a deed purporting to assure a property, if there be adescription of the property sufficient to render certain what is intended,the addition of a wrong name or of an erroneous statement as toquantity, occupancy, locality, or an erroneous enumeration of- particularswill have no effect.’ On the expressions ‘ the addition ’ and ‘ anysubsequent erroneous addition it should be observed that * all themembers of the Court of Appeal in the same case, all the more forciblybecause they spoke obiter, protested against the view that it is materialin what part of the sentence the falsa demonstrate is found.
The rule is undoubtedly ancient; see Dowtie's case; though the •consequence of an erroneous addition had been mitigated before BaronParke’s time. Later on, in Llewellyn v. Earl of Jersey (supra), that learnedJudge says of the clause in question, a very different one be it said fromthe present clause, ‘ the portion conveyed is perfectly described, and canRe precisely ascertained, and no difficulty arises except from tbe subse-quent statement namely, a statement as to the number of poles in the■close. Finally, he austerely observes, ‘ It is of much more importance
1 (1915) A. C..900.
AKBAB J.—Perns t. Seneviratne.
157
that we should adhere strictly to legal maxims, than attempt to evadeAhem to meet the supposed intention of the parties Without venturingto question or to qualify so inviolate a rule, I venture to think that itdoes not apply in the present case for the following reasons. ”
Mr. Rajapakse who appeared for the respondent quoted Voet XVIII.,-c. 7, tit. 1, and he argued that under the Roman-Dutch law whena property was sold specifically, it was done by mentioning no quantityat all or if there was a declaration of quantity it was followed by a provisothat the quantity was not to be strictly reckoned or thirdly if the quantitywas mentioned and the boundaries had been indicated at the same time.This passage occurs in a paragraph dealing not with the validity of suchsales, but with the law affecting .the calculation of the price. Even here,however, the third alternative seems to indicate that unless the difference.in the quantity was very great, the description of the boundaries was tobe regarded as showing the sale of the property specified. This lastalternative seems to show that even in the Roman-Dutch law if there areindications as regards the exact identity of the property, this is to governthe sale notwithstanding any small difference in the quantity mentionedand that afterwards ascertained. The further remark that I should liketo add is that Voet was referring to sales of land. In this case we are•concerned with the sale of a house and as I have said the clear indicationwas to sell the whole house. In my opinion effect should be given tothis interpretation and I would therefore allow the appeal and enterjudgment for the plaintiff declaring him entitled to the whole housein question, and also to the damages claimed by him. The added•defendant-respondent will be ejected from these premises, and shewill pay the costs incurred by the appellants in both Courts.
Appeal allowed.