JAMIS v. SUPPA UMMA et al

014-NLR-NLR-V-17-JAMIS-v.-SUPPA-UMMA-et-al.pdf


( 33 )
[Full Bench.]
Pretent : Wood Benton A.C.J., Ennis J., and De Sampayo A.J.
JAMIS v. SUPPA UMMA et al.
295—D. C. Kandy, 21,94,1.
'•
Sale of land by auction—Notarially attested conditions of sale signed by
purchaser—Defectintitleofvendor—May purchaser repudiate
sale *—Warranty—Vacant possession.
A purchaser of a land at an auction who signs notarially attestedconditions of' Bale agreeing to complete the purchase is not entitledto withdraw from the sale on the ground of any defect of title ofthe vendor; ’ in the absence of fraud on the part of the vendor; andof an express warranty of title, he is only entitled to get' vacantpossession.~•
The defendant caused a land to be put up fpr sale by publicauction, and plaintiff became the- purchaser, and signed notarialconditions of saleagreeingtocomplete thepurchase.Thereafter
plaintiff, alleging that the* defendants title was defective, claimedin this action a refundofthesum paid byhim. asauctioneer’s
charges and other expenses incurred' by him in investigating thetitle.
Held (per Wood Ebnton A.C.J. and De Samfayo A.J., Ennis J.dissentiente), that plaintiff waa not entitled to ' decline to acceptvacant possession on the ground that his vendor's title wasdefective.
Wood Benton A.C.j.—In the absence of fraud or of an expresswarranty of title, the only primary obligations resting on thevendor, of immovable property are to give. the. -purchaser “ vacantpossession,” that is to say, possession unmolested by the claim ofany other person in possession of the property sold, and to warrantand defend the title which he conveys,' after the purchaser, onceplaced in possession, has been judicially evicted.
A
PPEAL from a judgment of the District Judge, Kandy(F. B. Dias, Esq.).
The facts are set out in the judgment of Wood Benton A.C.J.- and De Sampayo A.J.
The case , was reserved for argument before three Judges byEnnis J. and De Sampayo A.J.
Bawa, K.G. (with him E. W. Jayewardene, J. S. Jayewardene,and L. H. de Alwis), for appellant.—The land sold is burdened witha fidei commitsum. The first defendant had no title to sell. He isonly entitled ^o a life interest at present. What the auctioneer sold
8J. X. B 18828 (7/62)
IMS.
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1918*was the land itself, and not the life interest. .It is open to the
Jamie v. purchaser to withdraw from the sale on finding that the vendor has
Buppa no title.
Umma
[De Sampayo A. J.—Is it clear that the land is burdened with a fideicommissum ?] It is on that footing that the ca6e was argued andreserved for the consideration of three Judges. [Wood BentonA.C.J.—Let us assume that there is a defect of title for the purposeof this argument.]
There is no difference between the English law and the Boman-Dutch law as to the rights of parties in the case of sales by auctioneers.See Marshall's Judgments 46.
The first defendant was guilty of fraud, invthat she did notdisclose to the plaintiff all the information she possessed as to hertitle. See HaUbury's Laws of England, vol. XXV., p. 302, ss. 510and 511.
Inasmuch, as this sale was by auction, the English law applies.The rights and obligations of an auctioneer are governed by theEnglish law; and not the Boman-Dutch law, if there is a conflictbetween the two laws.
Counsel cited Carlisle v. Salt,1' re Hadicke and Lipski'sContract,2 Ellis v. Rogers,3 re Oloag and Metier* s Contract* Chittyon Contracts 353
Even under the Boman-Dutch law the vendor must give possessionand title. [Wood Benton A.C.J.—Alagiawaiwa Gurunnanse v. DonHendrick et is a Full Court judgment against you. The vendor’sobligations are to give "vacant possession and to give . a warrantyagainst eviction.] The facts of that case are different. In that casethere was a completed lease. Here there is only an agreement topurchase. A would-be purchaser should not be forced to enter into
a sale when,he knows that the vendor has no title.
■ * *
In Ratwatte v. Dullewe* the vendor gave title, but not possession.It was held that the purchaser was entitled to get back his moneypaid to the auctioneer (see p. 309). In this case the vendor isprepared to give possession, but not title. He cannot be forced toaccept possession as sufficient. The land is burdened with a fidei• commissum. When the fidei commissary comes forward the vendor, would be dead, and he might have left no property. It is unreason-able to ask the appellant to pay money now for the land on thedoubtful chance of getting back his money some twenty or thirtyyears hence. ,
Under the Boman-Dutch law a purchaser was given, the right torescind sales on the ground of mistake or for certain defects; theactio quahti minbris and the actio redhibUoria were available topurchasers fo;r this purpose. See 3 Maasdorp 166 and 167.' There
,» (1906) 1 Ch. 335.* (1883) 23 Ch. D. 320.
• (1901) 2 Ch. 666.* (1910) 13 N. L. R. 225.
8 U$$5) 29 Ch. D. 661.• (1907) 10 N. L. R. 304.
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is nothing in the Roman-Dutch law which restricts the redhibitoryactions to movables.
It does not follow from the fact that a purchaser of land has theright to call upon a vendor to warrant and defend when sued inejectment that the other actions are not available to him. Counselcited 2 Nathan 761, Opinions of Orotius 566, 2 Maasdorp 59, Fernandov, Jqyawardene.1
A, St. F. Jayewardene, for the defendants, respondents. —The useof the word “ assigns ” in the habendum clause and in the clausecontaining the prohibition against alienation made- the gift a freeand unrestricted one. (Dassanaike v.'Dassanaike.a) Even if it wereotherwise the purchaser was bound to carry out his part of thecontract, as the vendor was prepared to give vacant possession.[Ennis . J.—But alienation of property subject to a fidei commissumis void. See Walter Pereira’s Laws of Ceylon, vol. ILf p. ’570.]That Refers to property the alienation of which is prohibited. by lastwill. Here the prohibition is created by an act inter vivos, or deedof gift. Even otherwise the alienation is not wholly void, but maybe set aside at the instance of the fidei commissary. ; In discussingthis question the distinction between the obligation to guaranteeagainst eviction and the obligation to guarantee against‘defects inthe thing sold must be observed. Where the thing sold had a defecteither .in its quality or quantity, the vendor could obtain a cancel-lation of the contract by the actio redhibitoria, or obtain a reductionof the price by the actio qtumti minoris. These remedies had noplace where the defect was in the title. (3 Maasdorp 166.) Thepassages referred to by. counsel for the appellant, beginning atp. 167, Maasdorp, vol. 111., refers to the conditions under which asale may be rescinded or the price reduced by the actions redhibitoria 'or quanti minoris, and have no application to this case, where thedispute is as regards a defect in the title. The fact that the sale wasby auction does not prevent the Roman-Dutch law from applymg,so far as the rights of the vendor and vendee of immovable propertyare concerned. The English law only regulates the contractualrights between the auctioneer and his principal. Under the Roman-Dutch law, in sales by auction- other than ex decreto judicio, therewas an implied warranty against eviction. (2 Burge 574; Matthaeusde Auctienibus, bk. 7., ch. XIV., ss. 5 et seq.) That being so,Tthequestion is whether the purchaser is entitled to ask for anytiiingmore than vacant possession of the properly sold. Under theRoman-Dutch law sale of. property belonging to a third party isvalid if the vendor acted bona fide or in ignorance. (Voet 21, 2, 31;
3 Maasdorp 163 and 164; Berwick’s Trans. 537, 2nd ed.) In thepresent case there is no fraud alleged or proved, and the deedunder which the defendant claims title gives her the propertywithout any restriction whatever. She has acted iona fide. She is
1918b
Jamisv,
Suppa
Umma
* (1896) Z N. L. B. 308.
* (1906) 8 N. L. B. 61.
1918
Jomiep.
Suppa
Ummom
( 38.)
prepared to give vacant possession, and that is all the purchaser isentitled to in the circumstances. (Voet 19, 1, 10 and 11; Betwiek’sTrans., 2ndedpp. 172 and 173; 2 Burge 540.) The fact that thetitle is defective is immaterial. so long as the purchaser can 'obtainsuch possession as he could maintain by a possessory suit. According
to Burge, volf //., p. 540, u The doctrine seems to have been.
that, if ihe vendor sold the property bona fide believing it to be-hisown, the purchaser was not at liberty if he discovered a defect inthe title, to refuse payment of or recover back the purchase moneyunless he had been actually evicted." The same law is laid down byPothier in his treatise The Contract of Sate. Burge cites' the passageat length at page 541 of his second volume, -and in that passagePothier says that the law is that, “though, the buyer finds
that the vendor was not the owner of the thing which he has sold,and consequently has not transferred the ownership to him, thebuyer, so long a6 he is not disturbed in his possession, cannot forthat reason plead that the vendor has not fulfilled his obligation.'*As regards the English cases cited, they are based on English Actsdealing with the transfer of land, and cannot be made applicable tothe law of. Ceylon. [Wood Renton A.C.J.—We do not wish to hearyou on that point;]
Bawa, K.C,, in reply.
Cut. adv. vvlt.
November 13, 1913. Ennis J.—•'
This case raises the question Nof the respective obligations of vendorand purchaser, and the legal remedies available for relief. Thequestion is governed, I consider, by Roman-Dutch law. It appears. that the property is (or may be) burdened with a fidei commissum.The deed Of gift, which forms the basis of the title Offered, containsa prohibition on alienation for thirty years. The period has notyet expired, and one of the persons to be benefited, a minor, isnamed in the deed, is admittedly still alive, and did not join in theconveyance to the first defendant.
It was urged for the defendants that this fidei commissum clausewas void on a true construction of the deed taken as a whole. Itmay or may not be so; it is a doubtful question of law, and turnsthe construction, of the terms of the deed. It would not, I consider,be proper to decide such a question as incidental to this action tcwhich the person interested is not a party. It is necessary tcconsider its effect on the contract. If the fidei commissum is good,there can be no doubt it would affect the vendibility of the thingsold. Voet 18, 1, 15 (Berwick 20). The prohibition is annexedto and inherent in the thing sold by virtue of the deed of gift, andrenders it unsaleable (Burge, bk. 2, p. 440), except with the con-currence of all the persons who take an interest under it. (WalterPereira 570.);
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The contract of sale in this case merely specified certain lands inKandy as the subject of the sale, and this must be construed tomean the full ownership (Bower v. Cooper,1 Hughes, v. Parker,* andMaasdorp, vol. III., p. 72), and not the. life interest only, to whichthe vendors would be entitled if the fidei eommissutn is good.
It has been urged that in the absence of express agreement thevendor does not warrant the title of the thing sold, but only warrantsagainst eviction, and that the purchaser may be compelled toaccept delivery even though the property belongs to another. Thisproposition is based on the following passages in text books onBoman-Dutch law.
Referring to the obligations of a purchaser, Maasdorp says'(bk 2, p. 182): “ Be is -bound to accept the thing if tendered tohim in accordance with the contract, even though the property maybelong to a third party.” This statement is made on the authorityof Vciet 19, 1, 18, and Qrotius 3, 25, 1.
Burge (bk. 2, p. 540) says: “ According to the civil law, thevendor, by the contract of sale, incurred the obligation to deliverthe property, but not to make the purchaser the proprietor, so as toentitle the latter to insist that the title shall be made dear beforehe paid the price. … The doctrine, therefore, seems to have
been, althQugh this inference is controverted by Callet in his com-mentary on the title ex exietiohibus, that, if the vendor sold theproperty, bona fide believing it to be his own, the purchaser was notat liberty, if he discovered a defect in, the title, to refuse’ paymentof or recover back the purchase money, unless he had been actuallyevicted.”
As to . the obligations of the vendor, Pothier says (in the passagecited in Burge, vol. II., p. £41), which I translate as follows^” The contract of sale is a contract by which one of the contractingparties, the vendor, binds himself to cause the other freely to holda thing under a proprietary title in consideration of a sum of moneywhich the buyer binds himself reciprocally to pay.
” I have said de lui faire avoir a titre de proprietaire. ' These terms.,which correspond to prastare emptori rem habere licere, embody theobligation to deliver the thing to the buyer, and an undertaking todefend it, after it has been delivered to him from all disturbances-by which people could prevent him from possessing the thing, andfrom holding it as the proprietor; but they do not embody, a definiteobligation to transfer the ownership, for a vendor who sells a thingof which he believes in good faith himself to be the owner, althoughhe may not be so, does not bind himself definitely to transfer theownership. That is why, though the buyer finds that the vendorwas not the owner of the thing which he has sold, and consequentlyha6 not transferred the ownership to him, the buyer, so long as he
1 8 M. <Ss W. 244..
1818.
Ennis J.
Jamie v.SuppaUmma
1 2 Hare 408.
1918.
Eapjis J.
Jamis v.SappaTJmma
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is not disturbed in bis possession*, cannot, for that reason, set upthat the vendor has not fulfilled his obligation. ’ ’
Voet 19, 1, 10 (Berwick 172), says: " The things sold are tobe transferred …. to the purchaser that he shall acquire vacant-possession of them, whether it has been expressly agreed or not.’*And further on he says (Berwick 173): “A vendor is under-stood to deliver vacant possession when he makes such delivery ofthe things sold that it cannot be reclaimed by' another person, andwhen therefore the purchaser would be successful in a suit forpossession.”1
It appears from these passages that if. the vendor, was in a positionto give a possession which could not be disturbed by a possessorysuit, the purchaser was under an obligation to accept the possession.This proposition was considered in coming to a decision in the casesAlagiawanna Gurunnanse v. Don Hendrick et al.1 and Ratwatte v.Dullewe.2 In the one case it was held that a lessee who had beengiven vacant possession had no cause of action until eviction, andin the other it was held that a vendor was not in a position to givevacant possession when a third party was actually in possession. .
‘ It is, however, one thing to say that by a contract of purchase andsale a purchaser is under an obligation to accept delivery of propertywhich did not belong to the vendor, and a totally different thing tofind that the Roman-Dutch law did not allow an action to set asidethe sale, when a vendor is in a position to give possession of propertywhich does not belong to. him. The obligation doubtless existed solong as the contract of 6ale existed. The passages cited show thatafter the purchaser has accepted delivery of property which did notbelong to his vendor no action was available until he was evicted,provided his vendor sold bona fide believing the property to be his.Do they go any further than this? 3 think not. A series Of actionswere available in Roman-Dutch law to a. purchaser by which hecould obtain a recision of a contract (Maasdorpi vol. 111., pp. 57 etseq. and p. 196); they were the same on a contract of sale as on anyother contract.
No provision of the Roman-Dutch law has been cited to us, andI have been unable to find any, which definitely says that a purchasercould not get a recision of the contract where the title is foundbefore ,delivery to be either bad or doubtful. It is an argument weare asked to hold by drawing an inference from the passages I havecited, passages which appear to me to apply more particularly tothe position of the parties after delivery has been taken by thepurchaser.
. No fraud is alleged' in this case, but the circumstances themselveshave been urged as indicating a . want of mutuality. The vendorsmust be deemed to have known of the existence of the prohibitionon alienation contained in the deed of gift the source of their title,
* (19i0) 13 N. L. R. 225.2 (}go7) 10 N. L. R. 304.
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and, notwithstanding that they may have had a bona fide belief itwas invalid, there was not a fur disclosure of- the position beforethe auction. The vendors were offering the full ownership of theproperty burdened with the strong possibility of a lawsuit. It hasbeen urged that the purchaser might have found it out beforebidding. It cost him Bs. 75 to find it -out. afterwards xIs it reason-able to say that every person bidding at an auction incurs such anexpense before bidding, in order to mate sure he is not buyingprospective actions at law ? I think that he was entitled to relyon the averments in the conditions of sale prior to the property'being knocked down to him. The opportunity to examine the- titlewas available after the contract of sale and before delivery of theproperty.
It would, it seems to me, be unsafe to adopt an inference whichmay have far-reaching' and dangerous consequences, and thearguments of the respondents should ■ not be accepted unless it isclearly shown to be a doctrine of Roman-Dutch law, by which weare bound. I find in a note in Maasdorp (vol. 111., p. -5) thatcontracts of purchase and sale were regarded by the Roman-Dutchjurists as equitable or bona fidei contracts, and that they gave riseto bona fidei actions. The note says: “ Bona fidei contracts were'so called from the fact that, it being very difficult because of theinfinite variety of circumstances to lay down all the terms of agree-ment so accurately in transactions binding on both sides thatsomething might not be omitted, it was thought only right that whatwas omitted from the epress terms of. a contract should be supple-mented by the equity of the Court in agreement with what was fairand in accordance with good faith.”
In.Roman-Dutch law it would seem, therefore, that the degree ofgood faith by vendors. and purchasers was a question of equity forthe Court, adjustable to. changing circumstances. The contractof . purchase and sale contained reciprocal obligations, on the vendorto deliver, and on the purchaser to receive, the things, sold; and,,presumably, the measures of relief were also reciprocal. By-the ‘civil law it was a controverted question (Burge II., p. 542) whethera vendor who has been adjudged by sentence to deliver .the -propertysold could be compelled to obey the sentence. It would seem thatthe civil law authorized a purchaser to sue before eviction, when thevendor sold what he knew did not belong to him (ibid.), and Pothier’sexplanation, which I have cited, clearly applies to a case yhere avendor has bona fide sold, i.e., when he did not know the thing didnot belong to him, and where the defect was discovered after transfer.In the present case I doubt whether it is possible to hold that thevendors sold bona fide, as they must be deemed to Jiave been awareof the primd facie bad, and by construction doubtful, state of thetitle, and even if the sale by them could be deemed bona fide, Pothierwould seem by implication to be an authority for the proposition
IMS.
Bams J,Jamie «.Umma
( 40 )
1918.
Ennis J.
. Jamiav,SuppaUmma
that the* Sale could be rescinded before delivery, the real obligationof the. vendor to his purchaser being de lui faire avoir librement atxtre. de proprietaire**
This obligation is not merely to warrant the purchaser against evic-tion.- It is primarily an obligation to transfer the ownership. Theguarantee1 against eviction operates after transfer h&s been effected.
With 'reference to the transfer of ownership, Maasdorp (bk. 2p. 59) says that to effect a valid transfer it is essential that thetransferor be the owner of the thing; and referring to this, essential,he adds * (p. 60):“It is almost unnecessary to remark that a
delivery ihade by a person who is not the owner, nor authorised byexpress mandate or authority to act for the owner, is void.” Furtheron (p. 64) he says:“ If there be.any difference of opinion as to
the thing which is being delivered and accepted, the delivery willbe void for the want of the necessary consensus.” Again.(p. 75)he says: “As regards the general requisites of the transfer ofownership … . .it may be1 stated that under our system ofregistration of land a transfer of immovable property by any otherthan the owner, except by means of forgery or fraud, which wouldmake a transfer void, is impossible.”
Speaking of the Cape system of registration of land, he says(p. 71): “ Our law with respect to the registration and transferof immovable property is derived, not from the Roman law, whichdrew no great distinction between the delivery of movable and thetransfer of* immovable property, but from the customs of theNetherlands.’1
The Ceylon law requires deeds of transfer of land to be registered,but it does not make unregistered deeds altogether void (OrdinanceNo. 4 of 1891, section 17); so it may he that in Ceylon the transferof land by' a person who is not the owner is not impossible in theabsence of forgery or fraud.
In my opinion equity must decree relief against an obligation totake a void transfer—void on account of the vendor not being theowner, or void for the absence of the necessary consensus consequentupon the ’ difference of opinion as to the thing which is beingdelivered’.’ There is no good reason to assume that Roman-Dutchlaw would hot, decree a recision of the contract in such a case beforedelivery of possession; there is, on the contrary, reason to believethat it could and would so decree.'
The customs – of the Netherlands relaxed the strictness, of theRoman law, and allowed contracts to be supplemented by the equityof the Court: ’ These customs required something more than deliveryof possession to effect a valid transfer of ownership; there was a“ solemn cession ” in the presence of a Judge, and it may well' bethat if the Judge kept a record of these transactions, the transferof land by any other than the owner, except by forgery or fraud,was in the Netherlands, as In the Cape, an impossibility.
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In Ceylon also the delivery of possession only does not operate asa valid transfer, for by Ordinance No. 7 of 1840, not oply must thecontract of sale be in writing notarially executed, but the transferalso must be< in writing notarially executed before it has any forceor avail in law. The deed transferring title and not the. nakeddelivery of possession is now the essential act of transfer under acontract for the sale of land.
A passage in Voet 18, 1, 5, dealing with the effect of a mortgageof brass as gold, in my opinion indicates the position taken by theBoman-Dutch jurists, viz., that contracts void for want of the-requisite consent acquired validity only when they, were ratified.Voet says (Berwick 10):“For. it must be considered .that
although the mortgage of brass as gold is, if we have regard to* itsinception, void for want of the requisite consent, it acquires validitywhen, on the fraud or mistake being discovered, the creditor never-theless ratifies it, reckoning it better to have at least that ratherthan no security at all : very much in the same way as a purchasewhich once has been brought about by fraud, although nuli. ab initio,may nevertheless be confirmed by the person who was fraudulentlyinduced to enter into the contract if he considers it an advantageousone for himself in spite of the fraud. ”
Voet 18, I, 24 (Berwick 20), again says:“ The sale is complete
as soon as the parties* have agreed to the commodity and theprice. . . . and it cannot then be receded from unless. . …there stall remains something to be done. *’
In this case a notarially executed transfer remained to be done,and prior to that the sale can apparently be receded from*
Hie authorities cited agree that—
A person who unknowingly accepted a. fraudulent • transfer
could take action before eviction.
A person who knowingly accepjfced a fraudulent transfer
could not take action before eviction.
(8) A person who knowingly accepted a bona fide transfer, -which subsequently turns out to be bad, must wait tillhe is evicted before he can bring action.
(4) A person who accepts a bona fide transfer, knowing it to be
bad, could not take action before eviction.
✓
But no authority has been cited for the proposition that a personwho discovers before accepting .transfer that the proposed transferisbad or doubtful has no alternative but to accept it and wait for/Eviction..*
My view of the case is that the circumstances are such .that it isonly fair and in accordance with good faith that the appellantshould have the relief he seeks, no conclusive authority havingbeen shown that such relief was not open to him under the Boman-Dutch law.
I would allow the appeal.
m
Enhis J.
Jamie v.SuppaXJmma
1913.
Jamw v.
tfuppa
Umma
C 42 )
Wood Renton A.C.J.—
The plaintiff, the appellant, sues in this action to recover fromthe defendants, the respondents, the auctioneer’s charges and. otherexpenses incurred by him in connection with the purchase of aproperty put up by the first defendant-respondent for sale by publicauction. The second defendant-respondent is the husband of thefirst. The ground on which the plaintiff’s action is based is analleged defect in the title of the first* defendant to the property inquestion. The land originally belonged – to one Veloo. Veloo, bydeed dated February 3, 1897, donated it to his brother “ Alwaroo,his heirs,' executors*, administrators, and assigns, as a gift irrevocable,to have and to-hold the 6aid premises unto him, the said Alwaroo,his heirs, executors, administrators, and assigns, for ever. ■.,.
and covenanted always'to warrant and defend the same unto himand them against any person whomsoever. ”,
The gift was, however, subject to a proviso that, during the nextthirty years, the donee Alwaroo should not mortgage or sell theproperty, or lease it for any period beyond two years, and .that ifhe died without legitimate issue before the thirty years elapsed, theproperty should pass absolutely to his children Muniamma andAiyamperumal. By deed' dated October, 28, . 1911, Alwaroo andMuniamma sold the property to the first defendant. Muniammahas died childless since the date of her deed, but Alwaroo and herbrother Aiyamperumal are still alive. The latter is still a minor.There is nothing in the pleadings, or in tEe record of the proceedingsin the District Court, to show that the first defendant, in puttingup the property for sale, acted otherwise than in good faith. Itwas contended, however, that the deed of 1897 by Veloo created afidei commissum in favour of Muniamma and Aiyamperumal, andthat Alwaroo Lad no right to sell the land. The learned DistrictJudge over-ruled that contention, held that the deed conferred onAlwaroo an absolute title, and dismissed the' plaintiff’s action withcosts* reserving the right of the defendants to recover the unclaimedpurchase money in a separate action, if the necessity for. doing soarose.
It is, I think, neither necessary, nor desirable that we shouldexpress in the present case any opinion as to the nature of Alwaroo’sinterest under the deed. It is conceded, as I have already indicated,for the purposes of these proceedings, that the first defendant actedin good faith. There is* nothing to show bad faith on the part ofAlwaroo and Muniamma, neither is there anything in the deed of1897 to prevent them from conferring on the first defendant, or thefirst defendant from giving to the plaintiff, a possession of the pro-perty free from all adverse claims during Alwaroo’s lifetime. Thequestion, that we have to decide is whether, in .these circumstances,the plaintiff is entitled to decline to -proceed lurther with his bargain*and to claim a refund of the expenses incurred by him in connection
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with it, including iris deposit, of a quarter of the purchase money.This question must, in pay opinion, be answered in the negative.The point is clearly governed by Boman-Dutch, and not by English,law. Whether the rules of Boman-Dutch law on the subject arereasonable or not is a matter with which we have no concern.If they are unreasonable, the Legislature, can alter them. Theduty of .the Court is merely to ascertain what they are. Under theBoman-Dutch law a contract for the sale of immovable propertyis, in my opinion, fundamentally different from a similar contract.under the law of England. The actio redkibitoria and the actioquanti minori$. are competent only where there, is defect in the■thing sold itself. They are not remedies for defect of title. In theabsence of fraud or of an express warranty of title, the, only primaryobligations resting on the vendor of immovable property are to givethe purchaser “ vacant possession, ” that is to say, possessionunmolested by the claim of any other person in. possession of theproperty sold, and to warrant and defend the title which he conveys.,after .the purchaser, once placed in possession, has been judiciallyevicted. (See RatwatU v. Dullewe 1 and Alagiawanna Ourunnanse v.Don Hendrick et al2.) The purchaser cannot, in such circumstances asexist in the present case, decline to accept vacant possession oil theground that his vendor's title is defective. The defect, if it exists,may be cured by time. If the purchaser is ousted, he has hisremedy. (See Burge, 1st ed., vol. 11., pp. 540, 574; Berwick’s Voet173; Nathan, vol. 11., s. 880 and p. 669.) I can find no groundfor holding that a purchaser stands under Boman-Dutch lawin a better position before the execution^ of a conveyance in hisfavour than he does after it. If he declined! to accept such aconveyance on the ground that the vendor's title was defective,, thevendor could meet his objection at once by saying, " I, am able togive you vacant possession, and I will defend the title conveyedwhen it has been successfully attacked. ” The conditions of salein the present case confer upon the purchaser no express rights, andcontain no statement of the vendor's interest in the property sold.In these circumstances both parties must be regarded as havingcontracted under the provisions of the common law. I havealready stated what I believe the common law to be.
I assent to the order. proposed by my brother De Sampayo.
De Sampayo A.J,— .
On November. 23, 1912, the first defendant, who is the wife of the"second defendant, caused a certain land and premises to be put upfor sale by public auction, and the plaintiff, a& the highest bidder,became the purchaser of the property for a gufr of Bs. 3,650, andsigned notarial conditions of sale whereby be agreed to complete the
» {1907) 10 N. L. R. 304.* (1910) 13 N. L. JR. 226.
iwa
Woop
Rrmtos
A.C.J.
Jamie v.Suppa
TJmma
( 44 )
1918. purchase according to the conditions. The plaintiff accordinglyJD« Bampayoai*ctioneer a suni ®S; 912.50, being-a deposit of
A.J. one-fourth of the purchase moneys and a further sum of Rs. 299.50Jamie as auctioneer's charges, and agreed to pay the balance purchase. Suppamoney within one month of the sale. The conditions of sale
Unma provided that, should the purchaser fail to comply with the condi-tions, the money deposited and the charges paid should thereuponbe forefeited to .the- vendor, who was to be at liberty to enforce thesale or to re-sell the property and recover from the purchaser anydeficiency. The plaintiff stated in his plaint that after the sale hehad the defendant's title to the property examined by his .lawyers,and that " the said title was. found to be defective and not a validand marketable title, and that its validity was found to "depend ondoubtful questions of law, " and 'he claimed in this action a refundof the sum of Rs. 299.50 paid as auctioneer's charges, and a furthersum of Rs. 75 as expenses incurred by him in investigating'.the title..Why Khe did not also claim a refund of the one-fourth purchase moneydeposited does not appear.i
It appears that the first defendant holds am absolute grant forthe premises dated October 28, 1911, from one Alwaroo, whose titlewas based on a deed of gift dated February 3, 1897, from his brotherVeloo. By this deed of gift Veloo conveyed the property to Alwaroo,“ his heirs, executors, administrators, and assigns, as a gift irrevo-cable, " with habendum to him, “ his heirs, executors, administratorsand assigns for ever," and with the usual covenant for title. Thehabendum was followed by a proviso in these terms : " That he,the said Alwaroo, his heirs, executors, or assigns, shall not have thepower to sell or mortgage or lease for a period exceeding two yearsthe said several lands and premises …… for a period of thirty
years commencing from the date hereof and to be fully completedand ended. That if my said brother, the said Alwaroo, shall diebefore the expiration of the said period of thirty years withoutleaving any legitimate issue, then and in such case the said severallands . .•• * – shall devolve upon and become the absolute
property of my said children Muniamma and Aiyamperumal. "According to the plaintiff, Alwaroo is still alive and is un-married, and Muniandma (who joined in the deed of sale to firstdefendant) is now dead, and Aiyamperumal is alive and is still aminor.
At.the. trial no evidence was called, but both parties were contentto have the case decided on the legal questions, whether in. thecircumstances above stated the . first defendant was bound todisclose good: title for the purpose of holding) the plaintiff , to hisagreement to purchase, and if so, whether the first defendant’stitle was (as the plaint put it) “ a valid and marketable title."The District Judge decided both these points in favour of the firstdefendant, and the plaintiff has appealed.
( 46 )
Mr. Bawa, for the appellant, first of all addressed to us an 1918.argument to the effect that the first defendant was guilty of fraud n.or misrepresentation, in that she had not given to . plaintiff all the A~J.information she possessed as to her title to the property, and that hisv
agreement was on that ground avoided.. Even, the English law,Suppa
which was relied on, does not seem to go that length. It is sum-marized in the Laws of Eptgland, vol. XXV., s. 502, as follows: “ Acontract for the sale of land is not a contract liberrinuB fidei, in whichthere is an absolute duty upon each party to make full disclosureto-.the other of all material facts of which he has knowledge, but thecontract may be avoided on the ground of misrepresentation, fraud,or-mistake in the same way as any other oontraot.” Now, in thiscase no such fraud or misrepresentation was pleaded in the plaintor formulated in the issues, nor was any evidence put before theCourt on that point. As a matter of fact, the first defendant had0an absolute conveyance for the property in her favour, though thisconveyance referred to the deed of gift in favour of her vendor.
The, vendor’s deed of gift, even if she were in fact aware of its terms,would not necessarily inform her of the title being other than valid.
She caused the property to be advertised for side by public auction,thus giving would-be purchasers every opportunity to make dueinquiry as to title. It was obvious in these circumstances that theappeal could not reasonably be sustained so far as the suggestionof fraud or misrepresentation was concerned; and counsel for theappellant, secondly, took up the position that, apart from fraud andmisrepresentation, it was the duty of the first defendant as vendorto make out a good title in order to entitle her to performance bythe'plaintiff of his agreement to purchase.
I need not examine the English authorities relied on by appellant’scounsel. It may be assumed that under the English law, in thecase of a sale of real property, the vendor should deduce good titlebefore the contract can be enforced, and for that purpose shouldfurnish an abstract of title and do other things which are well knownin the law of conveyancing. But these requirements are relevantto a system of law which, in regard to the mutual obligations ofvendor and purchaser of immovable property and the consequencesof the completion of a sale, is quite different from the Boman-Dutchlaw, by which we Me governed. Under the English law, “ aftercompletion of the contract the transaction is at an end as betweenvendor and purchaser, and, as a general rule, no action, either atlaw or in equity, can be maintained by either party against the otherfor damages or compensation on account of errors as to quantity orquality of the property sold, unless such error amounts to a breachof some contract or warranty contained in the conveyance itself.”
(Lows of England, vol. XXV., s. 845.) This appears to me to furnishthe reason why, under the English law, before the . purchase iscompleted by a conveyance, the vendor is required to satisfy the
( 46 )
1918. purchaser out the question ol title. Further, it seems to me that theDb Sampayolaw is. expressly excluded by the proviso to section 1 6i the
A.J.Ordinance No. 22 of 1866. That Ordinance introduces the English
Jamie v.lftW with respect to certain subjects, but it is provided inter alia that
Stypanothing therein contained should be taken to introduce into this
UnmaColony any part of the law of England relating to the conveyance
or assurance of any land or other immo^ible property. It is clearthat this refers not to mere forms of conveyance, as was argued, butto the obligations of the vendor and purchaser of real property.Under the Roman-Dutch law there is in every sale an impliedcovenant to warrant and defend the title, and the nature of theremedies available to the purchaser is in accordance with thepeculiar, obligations ,of the vendor,, even after the sale is completedby conveyance. The first obligation of the vendor is to affordvacant possession to the purchaser, – and in- default the purchaser,has an immediate right of action jex empto against the vendor forrecision of the sale. The. second , obligation is to warrant anddefend the title Against any. trespasser, and if the purchaser islegally evicted in the ret vindicatio action, he can sue his vendor forcompensation in-the action de evicUone, provided he has given himtimely notice. Subject to these obligations of the vendor and theremedies of the purchaser, a person may even sell what does'notbelong to himself. Voet 18, I, 14, says: “ It matters little whether■what is sold is the property of the vendor or not, inasmuch as h© isbound to purchase the same thing elsewhere and fulfil his contract,unless he prefers to be condemned in damages if he knowingly soldanother's property. For if he acted in good faith he is no fartherbound than for the delivery of vacant possession, and is only liablein damages for.the id quod interest in the case of the judicial eviction."(Berwick’8 Trans. 19‘) Maasdorp in his Institutes, vol. III., pp. 133and 134, says,: " The thing sold need not necessarily be the propertyof the vendor, as there may be a valid sale of the property of athird party, provided it is made bona fide. The duty of thevendor in such a case, if he has made delivery to the purchaser,is. to guarantee the latter against eviction, and if he has not yetgiven delivery, he is bound either to acquire the thing and deliverit to the purchaser or, in default, to pay the latter compensationin damages." Maasdorp in this passage adds:"If the vendor
knowingly sells property which does not belong to him to a buyerwho’ is ignorant of the fact, so as wilfully to expose the latter to thedanger of eviction, the vendor's conduct will be regarded as fraudu-lent, and the buyer will in such a case be entitled to bring an actionof damages against him even before he is himself evicted." Thecommentary in 2 Nathan 699 i6 to the same effect. In this case,as I have already observed, want of bona fides on the part of the firstdefendant was neither alleged nor proved, and the circumstancesnegative it. In my view the plaintiff’s only remedy will be an action
( 47 )
Jamia v.
Suppa
Ultima
for damages in ease of default of delivery of possession or in case of ^eviction after such delivery, and in either case he must in the first——
instance fulfil his own agreement. His present action seems to me u ~a,j.
to be premature.. These principles of the Boman-Dutch law areexplained and accepted in Alagiawanna Gurunnanae v. Don Hendricket d.1 and Babaihamy v. Danchihamy.* See also Voet 19, 1, 11, and9 Burge 540 and 541. This passage in Burge is important, becauseit appears from it that, even if the purchaser discovers a .defect inthe title after the sale and before the execution' of the conveyance,he is still bound to pay the purchase money and accept the convey-ance. The case of Ratwatte v. Dullewe,s cited to us in this connection;,will be found when' examined not to be contrary to the principles1above stated. For there a third party was in possession claimingtitle under the vendor’s predecessor in title and resisted the purchaser,and this Court held that, the vendor manifestly not being in a positionto deliver vacant possession, the purchaser, who had paid the fullpurchase money1, and thus was entitled to receive the agreed con-sideration, viz., free possession of the property, was not bound toaccept a conveyance and embark upon a litigation with the partyin possession, but could resort at once to an action for recision ofthe sale. In the present-case it is not alleged, and the circumstancesdo not show, that any third party is in possession of the property, 'orthat the first defendant is not in a position to make delivery. I donot lose sight of the fact that by “ vacant possession ” is meant 6uchpossession as may be legally maintained against the claims of thirdparties. The plaintiff in this case does not deny that the firstdefendant is in actual possession, and is able to deliver possession tohim in pursuance of the sale. The first defendant’s vendor, Alwaroo,is still alive, and cannot dispute his own sale to first defendant.
He may live for thirty years from the date of the gift to him, orhe may die leaving legitimate children, and in either case the firstdefendant’s possession, can be maintained. The plaintiff cannot beallowed to proceed upon a speculative fear of a possible doss ofpossession upon contingencies which may never happen. Ofcourse, if he be ultimately evicted at some time or other by someparty claiming to be entitled after Alwaroo’s death, he would stillhave his remedy by the action' de evictione against the firstdefendant, founded on the covenant to warrant and defend. TheBoman-Dutch law being such as I have here stated it, it -will beseen that there is not the same necessity as in the English law forthe vendor to make out a good title at the outset, unless he hasexpressly agreed to do so."
With regard to the actio redhibitoria and actio qudnti minoris, whichare available to purchasers under the Boman-Dutch law, and withwhich it was sought to identify this case, I need only remark that
' (1910) 13 N. L. B, 225.* (1913) 16 N. L.'B. 245.
* (1907) 10 N. L. B. 304..
( 48 )
1918. they relate to claims for latent defects of the thing sold, and'hot toIte R&hfayq dofects in the- vendor’s title.
Mr. Bawa, however, referred us to Marshall's Judgments 46,Jamie v, where it is stated that in matters of dispute between auctioneersdkjBPgand their employers, whether buyers or sellers, recourse may,
generally 6peaking, be had for the guidance of litigants to theEnglish or civil law indifferently,1 * and he thereupon argued thatthis case might well be decided by the principles of the English law.I do not think this passage in Marshall is of assistance in this matter.The passage occurs in a chapter on the law relating to auctioneers,and discusses the rights and liabilities of auctioneers under the oldRegulation No. 12 of 1825, and the learned author in that connectionrefers to a decision in a case where the defendant as auctioneer hadsold a land and called upon the plaintiff to pay the purchase moneyto the vendor, promising that he, the auctioneer, would get the titlesfor the plaintiff in a month, and where the Court held that, as itturned out that the vendor had no right to the land, the defendantwa6 personally liable to the plaintiff forj what had been paid on thestrength of the defendant’s promise. The ruling of the Court turnedupon the special circumstances of that case, and while the Englishlaw might be applied to a case between principal and agent, as^ indeed the later Ordinance of 1866 expressly, provides, it is not.applicable to a case between vendor and purchaser of land as such.For these reasons 1 am of opinion that the first defendant is notbound to satisfy the plaintiff in regard to her title to the land beforethe plaintiff performs his agreement to purchase. It might, ofcourse, be different if the conditions of sale had stipulated to conveygood title, but they do not.
The above judgment wa6 written after the argument in appealbefore me and* my brother Enni6, and I would also have beenprepared to deal with the question, which was argued before us,_whether, assuming that the first defendant was bound 'to make outgood title, her vendor’6 title was in fact defective by reason of itsbeing burdened with a fidei commissum. But, the argument before'the Full Court was confined to the first point, inasmuch as, if thatwas held against the plaintiff, it would dispose of the plaintiff’swhole case. It is, moreover, undesirable that the question of fideicommissum should be decided incidentally in this case in the absenceof the parties claiming under the fidei commissum. It is thereforeunnecessary for me to go into the question of the validity of thefirst defendant’s title.
In my opinion the judgment appealed against is right, and thisappeal cannot succeed on its merits. But Mr. Bawa, for the appel-lant, desired that, in the event of the Court being against him on thisappeal, his client should at least be given relief against a forfeitureof the ‘ money paid by him, and be allowed now to complete hispurchase. In all the circumstances of the case I think it is fair to
grant this relief. The order, therefore, will be that'on payment bytiie plaintiff of the balance purchase money within such time aathe District Judge may fix, the first defendant should grant aconveyance of the property in favour of the plaintiff in terms ofthe conditions of sale, and that ip failure of payment the decreeappealed against should stand. In any event the plaintiff shouldpay the costs of the action and of this appeal.
Db &4XFAVO
AJ.
Jamiff v-SuppaDficmo-
Varied.