127-NLR-NLR-V-02-FERNANDO-v.-JAYAWARDENA.pdf
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FERNANDO v. JAYAWARDENA.
D. C:, Chilaw, 723.
Implied covenant of title—.Prescription—Notice to warrant and defend title—Roman-Dutch Law.
A purchaser who has been evicted from property purchased byhim may. sue his vendor for breach of warranty of title, althoughhe had not given his vendor notice of the proceedings terminatingin his eviction, if he could prove that his vendor had no shadow ofa title to the property sold.
'J'HE facts are set.forth in the judgment.
Cbitty, for appellant. The District Judge is wrong in upholdingthe plea of prescription. The case falls under section 7 of OrdinanceNo. 22 of 1871 ; this action arises from a written contract of saleand is prescribed in six years. Notice to the vendor to warrant anddefend title is not necessary in every case. Where the vendor hadno title whatever to the property sold such notice is unnecessary.He cited Perera v. Amaris Appu (1 S. C. C. 54).
Jayavxtrdena, for respondent. The action is not based on anyexpress warranty contained in the conveyance; it is based on animplied warranty which arises out of'every contract of sale- Hencethe aotion can only be regarded as one for damages and not as onefounded on a written contract, and so falls under section 10 and notunder section 7 of Ordinance No. 22 of 1871.
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25th September, 1896. Bonser, C.J.—
The appellant purchased some years ago from the ancestor of the. defendants a piece of land. Subsequently, in 1889, the appellantwas evicted by certain persons who claimed title superior to that ofthe vendor. More than three years After this eviction he commencedan aotion, which is founded upon the implied contract to warranttitle Vhich arises out of every contract of sale and purchase.
1896.
September 25.
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1896. The District Judge dismissed the action, amongst other groundsSeptember 25. on the ground that it was prescribed. He held that it came underBoks^b,' C.J. seotion 10 of Ordinance No. 22 of 1871 as being an action fordamages, and that it ought to have been brought within two yearsof the cause of action arising. Mr. Chitty, who argued for theappellant, contended that the action ought to be regarded as anaction falling under section 7 of the Ordinance, being an action upona written promise, and that the action would be in time if broughtwithin six years—as in this case it was. I am unable to agree withthat contention. Section 7 appears to me clearly to relate to a casewhere the agreement or promise or contract or bargain, the breachof which is complained of, was reduced to writing. Now, in thiscase, the contract to warrant the property sold was not reduced'to. writing: it is implied from the fact of there being a contract of sale.Therefore, in my opinion, this action was rightly held to be pre-scribed. It may be an interesting question, which may some dayarise for decision, whether an action of this kind falls within section 8or section 10 of the Ordinance. In the present case, it is immaterialunder which section it falls : in either case the action is prescribed,and therefore it is quite unnecessary to decide this question.
The District Judge also dismissed the action on another ground,and that is this : that the plaintiff did not give notice to the vendorof the legal proceedings which resulted in the eviction. No doubtthe authorities state that this is in'general necessary to enable apurchaser to maintain his action, but it appears that there areexceptions to this general rule. If the purchaser alleges in his plaintand declares his readiness to prove that his vendor had no shadowof a title to the property, he is allowed, if he proves this, to haverecourse against his vendor, even though he had omitted to give him■ ‘ formal notice of the proceedings. The authorities for that proposi-tion will be found in Van Leeuwen’s Gens. For: 4, 19, at the end ;Grotiua Inst. 3, 15, 17; and Voet, 21, 2, 22.
Withebs, J.—I agree.
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