RATWATTE v. DULLEWE

059-NLR-NLR-V-10-RATWATTE-v.-DULLEWE.pdf


( 304 )
1907,
August 21*.
[Full Bench.]
Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice*Mr. Justice Middleton, and Mr. Justice Wood Renton.
RATWATTE v. DULLEWE.D. C., Kandy, 17,701.
Vendor and vendee—Liability of vender to put vendee in vacant possession
—Deliveryof deed—Insufficiency—Failuretodeliver possession—
. Cancellation of sole—Refund of puchose money.
Apart fromanyexpress agreement,avendor ofimmovable
property is bound to deliver vacant possession (i.e., possession unmolested bythe claim of any other person in possession) of the property sold to the vendee;on his failure to do so, the vendee is entitled to a rescission of the sale and arefund of the purchase money.
The vendee is not obliged, in such circumstances, to sue the partyin possessionbeforeproceeding againstbisvendor. Avendee of
immovable property is not bound to accept delivery of the deed oftransfer assufficient delivery of possessionofthe property;,he is
entitled to ask his vendor to place him in actual possession.
Where the question is between a purchaserand a thirdparty,
the delivery of the deed of transfer is sufficient- to entitle the pur-chaser to maintain an action, as owner, against such third party.
Judgmentsin Perera v. Amatis Appu1andAppuhamy ©.Appu•
homy2 referred jfco and distinguished.
i
A
PPEAL from a judgment of the District Judge of Kandy(J. H. Templer, Esq.).#
The defendant, who was the administrator of the estate of theestate of the late W. A. Dullewe, Adigar, put up for sale by publicauction on September 9, .1905, certain premises belonging to thesaid estate. b One of the conditions of sale was that the purchasershould be placed in possession of the said premises on payment ofthe full purchase money. At the sale the plaintiff became the pur-chaser of the premises, and he paid to the defendant the whole ofthe purchase money, and also the auctioneer’s and notary's charges.One David Walter Dullewe, a nephew of the deceased, was inpossession of the premises, claiming title under a verbal gift from thedeceased, and the defendant was unable to put the plaintiff in pos-session of the premises. The plaintiff on March 20, 1906, institutedthi& action for a rescission of the sale, and for refund of the purchasemoney and other charges paid by him. The defendant executed aconveyance in favour of the defendant after the institution of thisaction.
1 (1878) 1 S. C. C. 54.* (1880) $ S. C. C. 61.
( 305 )
The defendant alleged that the plaint disclosed no cause of actionagainst him for the rescission of the sale or the refund of thepurchase money.
The following issues were framed:
Does the plaint disclose a cause of action ?
Whether the defendant was bound by the conditions of
sale or otherwise to put the plaintiff in possession of theproperty sold ?
Whether plaintiff is entitled to the relief claimed by him ?
The District Judge held in favour of the plaintiff on all the issues!and entered judgment for him as claimed.
The defendant appealed.
Bawa (with him Van Langenberg), for the defendant, appellant.—This is an action which i6 not. recognized by the Roman-Dutch Law.The plaintiff was vested with full title as soon as the conveyancewas executed and delivered to him. Delivery of the conveyance hasbeen held to be a sufficient delivery of possession: Appuhamy v.Appuhamy;1 Don Andris v. IUangakoon,2The purchaser should
first sue the party in possession; and it is only if he fails jin thatnotion that he has a cause of action (de evictions) against his vendor.The Roman-Dutch Law does not allow a sale to be rescindedon the ground of failure to deliver possession. In this case theJudge expressly holds that the person claiming to be in possessionof the house has no title to it, so that the purchaser will have nodifficulty in asserting title • against him. The defendant havingalready executed a deed in favour of the plaintiff has divested him-self of all title, and c&n no longer maintain an action ret vindicatioagainst the trespasser. [Hutchinson G.J.—The mere executionof a conveyance by a person does not divest him of title ; the con-veyance must be delivered.] The plaintiff brought the action beforethe conveyance could be delivered; and it is not the defendant’sfault that it has not been delivered.
H. Jayewardene (with Em H. J. C. Pereira), for the plaintiff,respondent.—The present action is quite different from the actionde evictions. This is an action .to rescind the sale on the ground thatthe vendor is not in a position' to implement the contract by deli-ft vering possession. It may be that, if the* vendee chooses, he maytake symbolical delivery by accepting the deeds, and where he doesso, a third cannot attack Es title on the ground of want of deliveryof possession. That is the only extent to which Appuhamy
Appuhamy1 goes. In the present case the conveyance had not been*executed when the action was brought; it has since beeii executed,but not delivered. So that Appuhamy u. Appuhamy1 lias no appli-cation to the facts of this case. The vendee can insist on getting
* (1880) 3 S. C. C.*GL* (1857) 2 Lor. 49.
1907.
August 29.
( 306 )
1907. effective possession, and if the vendor is unable to give such posses-Auguat 29. aion, an action lies against the vendor for rescission of the contractand for damages. The actio de evictione only arises where the vendeeis put in possession and he has been “ evicted ” by a third party.In such a case the '* eviction ” is the cause of action against thevendor. The law on this point was fully stated by Sir John Phear,C.J., in Pereira v. Amaris Appu,l which was cited and followedby Middleton J. in Charles Appuhamy v. Qetchohamy et al.2
29th August, 1907. Hutchinson C.J.—
This is an appeal by the defendant against the judgment of theDistrict Court of Kandy.
The claim is for rescission of a sale of a house, and for return of thepurchase money paid by the. plaintiff to the defendant. The housewas sold by public auction by the defendant as administrator of theestate of an intestate, subject to certain conditions of sale ; theplaintiff was the highest bidder at the sale and paid the deposit,and afterwards .the balance of the purchase money in accordancewith the conditions. He complained that the defendant had failedto put him in possession.
After paying his deposit the plaintiff found that a man calledFelsinger was in occupation of the house as tenant under one DavidDullewe, and that Dullewe disputed the vendor's title and claimedto be the owner. The plaintiff delayed paying the balance for a fewdays in consequence of this adverse claim, and only paid it whentold that, if he did not, the deposit would be forfeited.
The defendant contended that the purchase was complete whenthe purchase money was paid, and .that the plaintiff's only remedywas to sue Felsinger or Dullewe; and he offered to givd to the plain-tiff, and, after this action was brought, ‘ he did actually execute aconveyance of the house to the plaintiff, which, however, the plain-tiff refused to accept. The plaintiff claimed that the defendantwas bound to deliver to him quiet possession. He claimed to beentitled to .this under .the conditions of sale; the conditions, however,do not contain anything express on the point.
At the trial the main issue was whether the defendant was bound bythe condition^ of sale, or otherwise, to put the plaintiff in possession;both Felsinger and Dullewe were called as witnesses by the plaintiffand gave evidence, and Dullewe stated the ground of his claim,which was .that the intestate had gifted .the house to him in 1893,and that he had taken the rents for his own use ever since that date.«Tfie District Judge disbelieved this statement of Dullewe ; but heheld that .the purchaser was entitled to demand that the vendorshould put hfrn in possession, and- the decree was .that the defendantshould put the plaintiff in possession, or in the alternative, that the
** (1878) 1 S. C. C. 54.*'(1907) 1 4pp. Court Hep. 97.
( 307 )
sale be declared void, and the defendant should pay to the plaintiff W07.
& sum representing the purchase money and certain expenses which August 29.the plaintiff had paid, with interest and costs.HxnxmnreoE
The appellant's contention is that the purchaser is bound toaccept a conveyance, even though he cannot get actual physicalpossession of the property ; that the vendor's only obligation is todeliver the dominium; and that the Roman-Dutch Law in case ofnon-delivery does not give an action to set aside the contract, butonly an action for damages. He also argued that delivery of a deedof transfer is delivery v of possession. WEere the question is betweenthe purchaser and a third person, delivery of a deed of transfer maybe enough to entitle the purchaser to sue as owner; that was thepoint in the case of Appuhamy v. Appuhamy1. And physicalpossession, as distinct from a mere right to it, may by agreement ofthe parties be effected in any way to which they both assent; andwhere there is no one actually in possession, or no one disputing thetitle, the deeid of transfer is usually accepted as delivery of bothtitle and possession. But that does not touch the present question,which is between the vendor and the purchaser, viz., whether thevendor is bound jfco place .the purchaser in actual possession.
Van Leeuwen 4, chapter 19, section 10, says that the vendor isbound to give possession of the property free from all bona fide pos-sessors. That seems to me to be right, whether the thing sold bemovable or immovable. It is not enough for the seller to say to thebuyer. “It is true that I have not got the thing in my own pos-session or power; it is in the hands of A. B., who claims it as his own;but now you have a right to sue A. B. for it, and that was all that Icontracted to* sell you." The defendant, on the appeal, has allegedthat Dullewe's claim is not made in good faith, and is indeed set upat the instance of the plaintiff in order to enable him to get out ofhis contract. No such allegation was made in the District Court,and there is no evidence to support *it. Finally, the appellant con-tends that the plaintiff can, at most, only claim damages; that theRoman-Dutch Law does not allow an action to set the contract asidein case of non-delivery of possession. We were referred to Voet, bk.
18, tit. 5, sec. 3, where, however, I do not find any such rule laiddown, and to the case of Perera v. Amaris Appu,2 .
In that case the plaintiff alleged that he had bought certain landfrom A. and had been placed in quiet possession of it, and had beenafterwards forcibly ejected by B; he sued A and B, claiming adeclaraiaoif of his title, and possession, and damages, and that* A^should warrant and defend his title. The District. Judge found thatneither the plaintiff nor A had any title, but that -the land belongedto B; and he ordered that the contract of sale by A to the plaintiffshould be cancelled, and that A should pay all the costs of both theplaintiff and B. On appeal by A the' Supreme Court set aside the
* (1680) 3 8. C. C. 61.* (1878) 1 3. C. C. *54.
( 308 )
X907. order made against A, on the ground, which was no doubt techni-August 29. ©ally right, that although A was liable to the plaintiff in damages-HuTomKsoir if he had not placed him in possession, yet as 44 no question on the°*J* contract of sale or issue as to damages or indeed any other issuehad been raised ” between the plaintiff and A, no order could bemade against A in that action. That is no authority for the pro-position that no action would lie against A, but only that the Courtshould not in that action give the plaintiff something which hehad not asked, and as to which there had been no issue. The Courtsaid: 44 If he (the vendor) fails to afford such (quiet) possession, thepurchaser's only remedy is by action against the vendor himself,on the contract, for specific performance thereof or for damages.Until delivery, although the contract is complete, the property inthe subject of sale does not pass so as to enable the purchaser onthat right alone to sue a third person for the possession. " Theobject of the first part of the above sentence seems to have been topoint out that the plaintiff, never having had possession, had noright to sue B, and that it was wrong therefore to make A pay B'scosts. The Court does not expressly say, and I am not sure that itmeant that the plaintiff could not claim against A a decree that thecontract should be rescinded; it merely said that in that action hehad not claimed either rescission or damages.
The defendant in this case was, in my judgment, bound to deliverquiet possession to the plaintiff; he refused to do so, that is, herefused to carry out the contract. He ,is therefore liable to returnthe purchase money .and to pay damages. The right to a decla-ration that the sale is rescinded is consequential on the right toreturn of the purchase money; for the return of the money couldonly be ordered on the ground that the sale was no longer in force.
The appeal should be dismissed .with costs.
Middleton J.—
The question here is whether the District Judge was right inholding that the plaintiff vendee was entitled to judgment forrescission of «a contract of sale of immovable property and the returnof the purchase money when the defendant vendor had in .factnotarially conveyed to him, but the conveyance had not been *accepted nor actual vacant possession by the plaintiff been obtained.
The contention of the defendant-appellant was that having% executed a conveyance the title to the – land was thereby vested inthe plaintiff, who had thus acquired all he had bargained for, i.ec, thedominium, which would enable him to obtain the actual possessionby ouster of the claiming occupant.
It was thus argued that the plaintiff's only remedy was to suethe claiming occupant for declaration of title, making the vendora defendant'll), the action to* warrant and defend his title. •
( 309 )
The facts in the case are that the plaintiff bought the propertyat a public auction on conditions of sale by which on the payment ofthe purchase money the defendant agreed to execute a conveyance,and that on payment of the full purchase money the purchasershould enter into possession of the property.
The plaintiff paid the entire purchase money, but found a tenantin possession of the property, who paid rent to a third person, Dul-lewe, up to the date of the plaintiff’s purchase in September, 1903.This tenant has apparently declined to pay rent until it can beascertained who is capable of giving a legal receipt, although headmits he tendered the rent to Dullewe on one occasion, whorefused it.
A conveyance appears to have been executed by the defendantand has been tendered to the plaintiff by letter but refused or ignored,and plaintiff says he knows there was a title deed for the land in thename of defendant’s intestate.
Dullewe was examined, and asserted that the property was his bygift from defendant’s intestate, and that he was not prepared togive possession either to the plaintiff or defendant. He also admitsthat he had prepared a list of defendant’s intestate’s properly witha view to obtain letters of administration, and that the properlyin question was put in that list.
It seems to be good and settled law (Appukamy v. Appuhamy,lfollowing Don Andris v. lllangahoon®) that the execution anddelivery of a conveyance of land in conformity with the Statuteof Frauds confers the dominium on the purchaser, and so giveshim a title to maintain an* action against a third party in possessionwithout or under a weaker title.
I have no doubt therefore that if the plaintiff here and acceptedthe conveyance tendered by the 'defendant, he might maintain hisaction against Dullewe for declaration of title, and might have calledupon his vendor to warrant and defend the title conferred.
In fact, I think it would be his proper and only remedy; but herethe purchaser has not* accepted the conveyance.
The question is also whether a purchaser is bound to accept sucha conveyance when he knows that the result of doing so will neces-sitate the bringing of an' action in order to acquire that physicalpossession which any person of sense would desire to acquire on. apurchase.
The law holds he is entitled to vacant possession on his purchase(Foet, bk? 19, tit, 1, s. 10; Berwick, p. 173), Mad Voet quotes fromthe Digest to show that a vendor is understood to deliver vacantpossession when he makes such delivery of the -thing, sold that itcannot be reclaimed by another person, and where therefore the*purchaser would be successful in a suit of possession. i
i (1880) 3 S. C. C. d,2 (1857) 2 Lor, 49.,
1907.
August 29-
Middi/btok
J.
( 310 )
1907. Vacant possession according to Voet may possibly (Berwick, p. 174)August 29. be distinguished from actual physical detention, and it would seemMtoduston ti*6 Boman-Dutch Law does not require an actual physicalJ. delivery of possession of immovable property, but merely a deliveryof a clear title to have such possession.
Vacant possessiop might, therefore, be given if a notarial convey,ance were accepted by the purchaser. All the facts connected withthe assertion of possession by Dullewe are of such a character thatthe plaintiff would be justified in refusing acceptance of the convey-ance and asking for a rescission of the contract and the return ofthe purchase money.
It may be said, on the one hand, that Dullewe has not and knowshe has not a title to the. property; that the tenant Felsinger is awareof the transfer by the defendant to the plaintiff and of Dullewe'swant of title; and that all plaintiff would have to do would be togive notice to the tenant either to quit or pay* rent to him, and hecould obtain physical possession he contends he is entitled to.
There is, however, on the other hand, the fact that Dullewe claimsthe property; that there is a possibility that he may maintain andsucceed in an action against the administrator-defendant on theground of prescription, or, in other words, an uncertainty whetherdefendant has a good title. .
If the plaintiff accepts the conveyance, he will, I think, be almostinevitably obliged to take legal proceedings to establish a clear titleto the premises he has bought.
It was incumbent, I think, on the defendant to have cleared thetitle before asking the plaintiff to accept the conveyance, and noman ought on equitable grounds to be compelled to aecept a strongprobability of 'a law suit in tbs' place of that quiet possession whicha purchaser is entitled to.
Under the contract also here the purchaser was entitled to enterinto possession on payment of the purchase money, which I take tomean actual detentive possession, and not symbolical possession bymeans of a title deed.
This he has been unable to obtain, and I think, therefore, that onboth grounds, I have indicated he is entitled to succeed in this action,and that this appeal should be dismissed with costs.
•Wood Benton J.—
I have corfeidered this case with all the care which Mr. B&wa’sable and most strenuous argument on behalf of the appellantdemanded. But, in view of the facts, I think that the judgmentappealed against is right.
( 311 )
It is clearly the duty of the vendor of immovable property togive the purchaser vacant possession. The Roman-Dutch writer?affirm this proposition in no uncertain terms
Tradere hie non est simpliciter de manu in manum conferre, aut innudam detentionem emptorem deducere, sed vacuam possessionemprmstare, id est, liberam ab omnibus possessoribus et detentoribusjustis. (Gens. For. IV., c. 19, s. 10.)
In bk. 19, tit. 1, ss. 10 and 11. Voet expresses himself to the sameeffect (and cf. also the definition of vacant possession by Berwick,p. 173, as “ possession unmolested by the claims of any other per-son in possession;'* and Burge, II., 358). Now what do we find inthe present case ? Mr. Felsinger is in possession of the propertysold as the tenant of David Dullewe. David Dullewe is called asa witness, and he declares that the property belongs to him, and thathe will not give it up to the respondent. There is no finding on theevidence- of collusion between the respondent and Dullewe. It istrue that the learned .District Judge takes an adverse view ofDullewe’s claim. ■ But that claim cannot be set aside withoutindependent legal proceedings. I think that a vendor who has merelyput or offered to put (for the deed of conveyance has not beendelivered to the respondent) his purchaser in a position to sue a thirdparty, who, without any collusion with the purchaser, is setting upand really means to try to enforce, an adverse title, is not giving,whatever his view may be of the ultimate prospect of success, thekind of vacant possession that the law requires.
What, then, is .the, respondent’s position ? He has paid the entirepurchase mcney. and, in exchange, has been furnished with title,or the promise of a title, to bring a law suit. We- are asked to saythat, under these circumstances, he has no right to cry off thebargain and reclaim his money. I do not think that any of the autho-rities cited by Mr. Bawa oblige us to affirm this startling, proposition.It has been held (Appuhamy v. Appuhamy1) that the executionand delivery of a conveyance transfers title to a purchaser so as toenable him to sue a third party in possession without title or undera weaker title, even (Don Andris v. Illangahoon2y although henever had possession of the property himself ; and there are other> decisions to the same effect (Wijanaika v. de Silva,2 Allis v. Sigera,APerera v. Baba Appu,5 Fernando■ v. Jayawardena*). But none ofthese cases decides that a purchaser is bound to adopt the remedy.which they say is open to him; and Appuhamy v. Getchohamy *decided by* my brother Middleton, is a direct authority to thecontrary. I think that we should follow that decision here. I
;
i (1880) 3 S. G. C. 61..«(1897)3 N.L.R. 5.
a (1857) 2 Lor. 49.5(1897)3 N.L.R. 48.
(1906) *9 N. L. R. 366.*•(1896)2 N.L.R. 309.
* (1907) A. G. R. 97..
1907.
August 29.
WoodRentoh J.
( 312 )
1907,
August 29.Wood
JtBHTON J.
have been unable to find any passage in Voet or in the CensuraForensis which decides that where a vendor fails to discharge theinitial obligation of giving vacant possession it is not competent tothe purchaser to ftlftim cancellation of the contract.
I would dismiss this appeal with costs.
Appeal dismissed.