075-NLR-NLR-V-05-GOONERATNE-v.-DON-PHILIP.pdf
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I860.
November 27.-
GOONERATNE v. DON. PHILIP.
C., Colombo, 10,4:42.
Purchase and sale—Recission on ground of enormis Icesio.
In order to succeed in an action for rescission of sale on the ground ofenormis Itrsio: plaintiff must prove that the property was at the date" ofthe sale worth double the price the defendant paid for it.
'HE plaintiff prayed for a rescission of the sale of certain
I allotments of land which one Simon Perera (the seconddefendant), who held his power of attorney, had sold to DonPhilip (the first defendant) by deed dated 2nd August, 1894, forRs. 28,500. Plaintiff alleged, inter alia, that the1 real value of thelands so sold was Rs. 50,000, and that the two defendants hadacted collusively and fraudulently in the matter. He expressed hisreadiness to refund to the first defendant the sum.of Rs. 23,500upon the cancellation of the. deed, and in the alternative he prayedthat if the sale were to stand, the defendants be condemned to paiyto the plaintiff the sum of Rs. 26,500, which represented thedifference between the proper value of the lands and the amountfor which it was sold.
The Additional District Judge (Mr. Felix Dias) found as follows.
“ The plaintiff was heavily indebted to the first defendant on amortgage of this property, and asked his attorney by letter toobtain time from his creditor and settle as much of the debt aspossible, and if there be any balance left to give him a bond for it-.If, under such circumstances, the attorney conveyed the land tothefirst defendant forRs. 23,500, I failtosee how the transaction
canbe described asfraudulent The land was bought
originally from the Crown as a forest for Rs. 18,276 in 1889 andsoldby the purchaserin the samestatetothe plaintiff in 1891 for
Rs.19,000- At thedate of saleto thefirst defendant by the
plaintiff’s attorney (the second defendant) only 55 acres had beencleared and planted with cocoanut aged two or three years, and Iconsider Rs. 23,500, a fair and reasonable price at the time of thesecond defendant’s sale to the first defendant.”
The plaintiff’s action was dismissed.
He appealed.
Dornhorst (with H. Jagaiiardene). for plaintiff, appellant.
Layard, A.-Q. (with Sampayo and Van Langenberg), fordefendants, respondents.
T
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27th November, 1899. Bosses, C.J.—
In my opinion this appeal must be dismissed on the groundthat the enormis Icesio on which the contract was sought to beimpeached is not proved.
Tor the plaintiff to succeed in an action of this kind he mustprove that the property was at the date of the sale worth doublethe price the defendant paid for it. In my opinion the plaintiff,although he may have established that the property was worthmore than the purchaser gave for it, has failed to establish thatthe discrepancy in value was sufficient to amount to enormia loeaio.That being so, it is unnecessary to consider the further questionsraised in the appeal, the question as to whether the action isprescribed as coming within section 11 of Ordinance No. 22 of1871, and the further question whether, if it did come withinthat section, time began to run only from the date when theplaintiff became aware of the sale. The sale, I should mention,was made by the plaintiff's agent whilst the plaintiff was in jail,and it is alleged that he did not become aware of the sale until hecome out of jail. Those are questions, as I said before, which, forthe purposes of this case, it is unnecessary to decide.
I base my judgment on the failure of the plaintiff to make outthat there was enormia Iceaio.
Withers, J.—
This is an action by a vendor to rescind a contract for the saleof immovable property on the ground of enormia Icesio.,
The first thing the plaintiff had to prove was that at the dateof sale the property was worth twice as much as the purchaserpaid for it. I am far from being satisfied from the evidence thatthat value has been made out. That- being so, I would affirm thejudgment.
1899.
November 27.