Where a sale is made ad quantitatem and not ad corpus, com-pensation must be paid for any deficiency.
Where there is a mention of the quantity sold, but at the sametime boundaries are pointed out, it should ordinarily be deemedto be a sale ad corpus ; if there is considerable deficiency suoh asto suggest that there has been a mistake in the pointing out of theboundaries, then compensation must be paid.
HE facts are set out in the judgment of the District Judge(P. E. Pieris, Esq.):—
By P 1 of April 12, 1918, the second defendant undertook to sell tothe first plaintiff an undivided half of Viharewatta at Koratota. Theextent of the entire land is given in P1 as about 67 acres, and from thisan extent of 6 acres was to be excluded. The vendor undertook tohave a survey made within a month, and the vendee undertook tc payRs. ISO an acre for the land. The second defendant duly produced aplan marked P 3 made by a surveyor, Mr. Frida. This gave the landto be sold as of 30 acres and 20 perches. On July 18 second defendantand the first defendant, the owner of the other half, executed thetransfer P 2 in favour of the plaintiffs. In the transfer the plan P 3 isreferred to, and the consideration was calculated on the acreage shown 1
1 (1915) 18 N. L. R. 464.
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1920. there. The plaintiffs thereupon had the land oleared and preparedfor rubber planting, when their superintendent discovered from thev. Sumangala ^m^er rubber holes'dug that the land oould not be of the extentTerunnanae described in P 3. A fresh survey was thereupon made by Mr. Sena-ratne. At the time when he went to the land, the entirety of whathad been sold was oleared. He was accompanied on the land by thesecond defendant, who lives on the reserved portion of the land. Thesecond defendant stated that what he sold was what had been cleared.Of course, the second defendant denies all this, and I consider his denialto be false. Mr. Senaratne found that the correct extent of the landsold was 17 acres and 23 perches only* He found that Frida’s plan took -in on the north-west about 4 acres from the *villager’s lands and about8 acres oh the east from the land of the late Hon. Mr. James de Ajwis.The boundaries of this latter land were worked by a drain, a dam, androok marks. There were the pickets of an older survey, which hasbeen made by order of this Court for the partition of Mr. de Alwis’s land.He oould find no trace of any survey along the north-west and easternboundaries along the lines shown in Frida’s plan. Frida himself wasnot called by the second defendant. It is very probable that Fridamade no survey at all, but merely enlarged 0 lot which seems to appearin a Crown village plan D 1. The failure to call Frida has cast an un-pleasant odour of fraud round the actions of the second defendant. Itmay well be that he was not called merely in his (Frida’s) own interests.This much is clear. The second defendant made it out that the landhe was selling was nearly 30 acres, he was to be paid by the acre, andwhen the land is cleared it is found to be about 17 acres. There is nodoubt whatever that the second defendant admitted that what wascleared fully represented what he sold, and that the properties of Mr. d©Alwis’s estate and of the villagers had been taken into Frida’s plan tomake up the 30 acres. There is evidence, which I accept, that thesecond defendant actually saw the eastern boundary of his land beingdemarcated for the purpose of the partition survey.
There oan be no question that the second defendant must refund theexcess he has paid. As to the first defendant, the case is different.There is nothing to show what exactly was the agreement entered intowith him. There ts nothing to show that he did not sell the land in th©lump for a fixed figure. It is clear that no one had a precise idea as to .the acreage. The earliest deed where the acreage of the land is givenis in the first defendant’s transfer-to himself and to the second defendantin his capacity of executor to Sobitha Unnanse. That deed is D 5” of1915, and the extent seems to have been given at a guess. The firstdefendant is not friendly with the second. There is no reason tosuspect fraud on his part. It is not even as if he were the party whowas anxious to bring about the sale. It is evident he was only inducedto sell by the persuasion of plaintiff’s messengers. I see no reason forholding him in any way liable.
No doubt, it is the fact that the plaintiffs are in possession of the8-aore lot on the east. But that is under an agreement of sale enteredinto with the owners of Mr. de Alwis’s land.
The second defendant must refund to the plaintiffs one-half of theexcesswhich has been paid, namely, Rs. 973*50. He must also pay thema further sum of Rs. 100, being damages incurred by them in clearingthe land through over-payment consequent on the misrepresentation
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of the second defendant. He will farther pay interest at 2 per oent.per annum from the date of the institution of this action till paymentin fall, as well as the plaintiffs’ costs.
Otn the Other'hand, the plaintiffs’ action as against the first defendantis dismissed, with costs.
St. V. Jayawardene, for the appellant in No. 278.
Samaramckreme, for the second defendant, appellant, in No. 279.
J. 'C. Pereira, for the respondent in No. 278.
F. M. de Saram, for the respondent in No. 279.
February 12, 1920. Bebtbam C.J.—
This is a case in which two oo-owners by a common deed sold acertain piece of land stating that it contained 30 acres, and definingits boundaries partly by reference to lands of adjoining propertiesand partly by a plan. In the case of the second defendant that deedwas preceded by a notarial agreement, in which the acreage wasstated at an even larger figure, namely, 37 acres, and the price wasfixed at so much per acre, and in which it was further stipulatedthat a plan should be prepared. The plan prepared did, in fact,include an extent of 30 acres, but this extent was arrived at byincluding land which was not the property of the defendants.The question whether the land so included was the property of thedefendants was not fought out at the trial as specifically or fullyas it might have-been. But I think that the learned District Judgehad every justification for finding, as he does, on this point, moreparticularly in view of the fact that the surveyor who made theplan was never called by either of the defendants. What, then, isthe position ?
The learned District Judge draws a distinction between thefirst and the second defendant. The second defendant activelyand positively represented that the extent of the land was 30 aores.There was no such representation made by the first defendant,except in the deed itself. The learned District Judge, therefore,thought himself justified in entering up judgment against thesecond defendant, but not against the first defendant.
In this Court Mr. Jayawardene has challenged the distinctionmade by the District Judge by a reference to paragraph 7 of BookXV111., Title 1, of Voet, where the principles of this question arevery clearly explained, and where it appears that, if a sale is madead quantitatem and not ad corpus, compensation must be paid forany deficiency. Voet there clearly explains what is meant by asale ad quantitatem and what by a sale ad corpus. He specifiesthree cases in which a sale may be considered a sale ad corpus-, eventhough there'are words of quantity in the agreement. One of thesecases is the case in which there is a mention of the quantity sold,but at the same time the boundaries are pointed out. Such a case
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Fernandov. SumangalaTerunnanse
would ordinarily be considered a sale ad corpus, but he proceeds to
add that, if there is considerable deficiency such as to suggest thatthere has been a mistake in the pointing out of the boundaries, thencompensation must be paid.
Now, it appears to me that this oase is precisely the case thusindicated By Voet. There is such a substantial discrepancy as tosuggest a mistake in pointing out the boundaries, and what is more,it is proved, in fact, that such a mistake has been made.
Mr. Pereira suggested that the passage felied upon by Mr. Jaya-wardene had no reference to a case in which the corpus was agreedbetween the parties, and, indeed, that all these passages only- applied to cases in which the quantity has been wrongly computed!
I do not think that this is a correct contention in view of this specificoase discussed by Voet, viz., the case in which there has been amistake in the indication of the boundaries. There thus appearsto be specific authority entitling the plaintiff to succeed againstboth defendants.
Mr. Pereira has pressed upon us the further consideration thatwe must look at the substance of the matter, and that, so far asthe first defendant was concerned, in his mind it was simply a saleof his interest in the particular property, and that his mind wasnever addressed to the acreage of that property at all.
I think, however, that, when a man has executed a deed settingout the terms of a transfer, we must look at that deed to find outwhat was the nature of the transfer, and that is the only basis onwhich Voet’s principles can be applied.
Mr. Samarawickreme, who appears in a cross-appeal on behalf ofthe second defendant, challenges altogether the position assumedby the learned District Judge, and says that the whole action hasbeen wrongly conceived; that if, in fact, the deed did includestrips of land which did not belong to the vendors, the proper coursefor the purchasers would be to resist the claim on the part of thepersons claiming to be entitled to those strips, and, if they wereejected, to come upon their vendors under their warranty to defendtitle. That no doubt is technically correct. But I think it is toolate to assume this position in this Court. The issue framed in theCourt below contained no such contention, and the parties havinggone to trial on the basis of these issues, I think it is too late to takeup the technically correct attitude in this Court.
In the circumstances, I am of opinion that the appeal of theplaintiff as against the first defendant must succeed with costs,and that the appeal of the second defendant must be dismissed,with costs. ■
Db Sampayo J.—I agree.
Appeal No. 278 allowed.Appeal No. 279 dismissed.