070-NLR-NLR-V-19-MISSO-v.-HADJEAR.pdf
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Present: Wood Benton C.J. and De Sampayo j.
1016
MISSO v. HADJEAR.
435—D. C. Colombo, 44,117.
Vendor and purchaser—Isaright ofwayanincumbrance ?—Covenant
that vendor has good title—May action, be brought against vendor—for breach of warranty of title without suffering judicial evictionand giving notice?
A vendor is liable foreviction, whetherthewhole thing has been
evicted or only a part, provided it be a part of the tbing “ andhomogeneous with it." A real servitude is a homogeneous part.
In all such cases it is essential that the purchaser should, beforehe suesthe vendor,be evictedbyjudicial decree. Thecondition
as to notice to thevendor andjudicial eviction -is notdispensed
with when the covenant to warrant and defend, which wouldordinarily be implied, has been in fact expressed in the deed.
In theBoman-Dutchlaw thereisno implied obligationon the
part of the vendor toconvey goodtitle.Hisobligation is to give
vacant possession andto warrant againsteviction. Consequently
any express warranty of title may with us be enforced without thepreliminary condition of notice and eviction.
A
PPEALfrom a judgment oftheActing AdditionalDistrict
Judge of Colombo (W. Wadsworth, Esq.). The facts are set
out in the judgment.
A. St. V. Jayewardene, for the plaintiff, appellant.
E. W. Jayewardene, for defendant, respondent.
Cur. adv. vult.
23-
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1016. November 23, 1916. Be Sampayo J.—
■^Ysso v The plaintiff was entitled, subject to a fidei commiaaum in favourHodjea/r of his children, to a sum of Rs. 19,488.48, which was in deposit inCourt in a partition suit. With the leave of Court he invested thatsum, together with Rs. 1,511.57 of his own money, in the purchasefrom the defendant of two lots of land called Wewalawatta andDelgaswatta, upon the deed No. 229 dated June 9, 1913. By thedeed the defendant covenanted as follows: —
“ That he hath good and lawful right to sell and convey the
said premises in manner aforesaid. ”
“ That the said premises hereby sold and conveyed are free
from all and any incumbrance whatsoever. ”
“ That at all times he and his aforewritten shall and will
warrant and defend the title hereby conveyed. ”
On taking possession of the premises the plaintiff found that twoadjoining landowners, named Bon Marthelis Appuhamy and BonPaulis Appu, were using a footpath across the land, and he prosecutedthem for trespass in the Police Court. In the course of the pro-ceedings he also discovered that the defendant had previouslyprosecuted the same two persons, and that the Court had acquittedthem on the ground that they had a right of way over the land.The plaintiff was obliged to submit to a verdict of acquittal, and wasreferred to his civil remedy. He accordingly brought this actionagainst the defendant, alleging that Don Marthelis Appuhamy andDoji Paulis Appu “ are entitled to, and are in possession of, a right ofway over the said premises, and that at .the date of the sale aforesaidthe defendant had no right to sell the lands absolutely,” and heclaimed Rs. 2,000 as damages.
At the trial the existence of the right of way was hardly disputed,and the District Judge in effect found that there was one, butdismissed the plaintiff’s action on the ground (1) that the covenantto the effect that the premises were free from incumbrance had noreference to servitude of way, and (2) that, as regards the covenantas to title, the plaintiff could not maintain an action until he hadsuffered eviction in an action between him and the disputants, ofwhich the defendant should have had notice.
I do not think that much advantage is to be gained by discussingthe abstract meaning of the term ” incumbrance. ” In the largestsense *it means any kind of burden on or diminution of the title,and in a narrower sense it is generally employed to indicate amortgage or charge upon the property. In this particular instru-ment I am inclined to think it is used in the latter sense. Thecovenant as to freedom from incumbrance is associated with twoother covenants, which appear to me to contain the whole compassof obligations of the vendor with regard to the title itself, and isintended, I think, to protect the vendee against such special claims
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as those of mortgagees. However that may be, I think the plaintiff'sease need not necessarily depend on the construction of thatcovenant. Before dealing with the other covenants, I may statethat under the Homan-Butch law a vendor is liable for eviction,whether the whole thing has been evicted or only a part, providedit be a part of the thing " and homogeneous with it," and a realservitude is a “ homogeneous part. ” See Voet 21, 2, 16, andMaasdorp’s Institutes, vol. III., p. 161. But, of course, in all suchcases it is essential that the purchaser should, before he sues hiBvendor, be evicted by judicial decree. I do not think that the-condition as to notice to the vendor and judicial eviction is dispensedwith when the covenant to warrant and defend, which wouldordinarily be implied, has been in fact expressed in the deed. Ithas no doubt been held by Hutchinson C.J. and Wendt J., inVanderpoorten v. Scott,1 that an express covenant to warrant anddefend excludes the covenant implied by law, and that the purchaser'sremedy is upon the express covenants only, but both in that caseand in the case of Ukku Menika v. Dingiri11 compliance with therule as to notifying the vendor to warrant and defend title and asto eviction by judicial decree was insisted on. I think, therefore,that if the plaintiff in this case had to depend on the third covenantstated in the deed to the effect that the defendant would warrantand defend the title, he might not be able to succeed, as he had notsuffered judicial eviction. But, in my opinion, he is not obliged toconfine himself to that covenant or the covenant regarding freedomfrom incumbrances. For there is the first covenant, which, I think,amply p suits his purpose. The defendant thereby entered into awarranty of title by covenanting that he had good and lawfulright to sell and convey the premises. In this connection I mayrefer to a point decided by the District Judge and repeated in theargument before us. Great reliance was placed on a passage inVoet 21, 2, 16, and it was strenuously contended that by the deedunder consideration the defendant had not sold the land uti optimusmaximusque est, and that he had not therefore warranted that theland was free from servitudes. After stating that if in the sale ofa thing it was specially agreed that other things, such as servitudes,were to be accessories of the thing sold, an action might be broughton account of eviction of these, the passage in question proceedsas follows: —
" Simili rations, si fundus, uti optimus maximusque est, dis-tractus fuerit, et vicinus aervitutem evincat, tanquam per istumfundum sibi constitutam, auctorem d& servitutis istvus evictioneobligatum habet: id enim ista formula agitur ut prcedium prcesteturliberum ab omni servitute; adeoque cum prcedio libertas quoque aboneribus nomination comparata censetur. ”
1016|
De Sampayo
J.
Misso v.Hcutgear
1 (1908) 11 N. L. R. 147.
* (1908) 4 A. C. R. 15.
1916.
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Mr. Berwick in Lis translation puts inHhe gloss, “ i.e. free fromservitudes ” within brackets, after the expression tiff optinvus-
De Samfayo mojdmusque eat. It is clear, however, that the learned translator
– does not mean that “ free from servitude ” is the exact equivalent of
Hadfear°V^mus maximusque est. All that is meant surely is that,
when a property is sold in such a way as to vest full and absolutedominium in the purchaser, freedom from such burdens as servitudesis also necessarily warranted. There may be under the civil law, orunder the Roman-Dutch law, some form of conveyance in which theexpression uti optimus maximusque est is used to express the idea ofconveying such full and absolute dominium. But if in our practicewe have some other form to convey the same idea, I think theprinciple stated by Voet should apply. Now I have no doubt that adeed of sale, with such covenants as I have quoted, must necessarilybe intended to pass full and absolute dominium. If this is right,then the passage in Voet, so far from helping the defendant inregard to his obligation to deliver the property free from servitudes,is an authority against him. But it is not necessary to pursue thispoint further. The question, as I have said, is whether the plaintiffmay not maintain an action directly on the express covenant forgood title contained in the deed. I think he can. In the Roman-Dutch law there “is no obligation on the part of a vendor to conveygood title. His obligation is to give vacant possession and towarrant against eviction, and the necessity of notice and judicialeviction is concerned with that obligation only. See Mortice's Englishand Roman-Dutch law 142, and 3 Maasdorp’s Institutes 133 and 134.Consequently any express warranty of title may with us be enforcedwithout the preliminary condition of notice and eviction. Vander-poorten v. Scott (supra) is an authority for that proposition. Seeparticularly the judgment of Wendt J., ad fin., where he points outthat in that case the defendant did not covenant that he had goodtitle. The opinion of the learned Judges was that if he had done soit would not have been necessary to go into the question w-hetherhe had been noticed to warrant and defend the title which he hadconveyed to the plaintiff. I
I think, therefore, that the plaintiff may maintain this actionfor damages for breach of warranty of title quite apart from anybreach of the covenant to warrant and defend the title. The breachis established by the finding of the District Judge, which I see noreason to disturb, that Don Marthelis Appuhamy and Don PaulisAppu had a right of wav over the land. It was said that theplaintiff, before his purchase, knew, or ought to have known, theexistence of the servitude. Even if that be so, it does not relievethe defendant of his liability on the express covenant. The measureof damages is rightly stated to be the difference between the priceactually paid and the price which the property would have fetchedif the existence of the right of way had been disclosed. As the
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plaintiff, according to tlie terms of the deed, has only a life iuterestin the property, the District Judge considered the question ofdamages in that point of view only, and said that if any damageswere due to plaintiff he would assess them at Bs. 100. But I thinkthat, whatever the plaintiff's interest might be, as he was the solepurchaser from the defendant, he is entitled to damages on that^asis, though it might be that he would be obliged to refund to theCourt the whole or part of the amount to remain in deposit subjectto the fidei commissum.
I would set aside the judgment appealed from and send the caseback for the purpose of determining the amount -of damages. Theplaintiff should have the costs of the trial in the Court below and ofthis appeal.
Wood Benton C.J.—I agree.
Sent bad:.
1916.
DeSampayo
J.
Misao v.Hadjenr