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Present: Lascelles C.J.SILVA ct al v. SILYA.
^5—C, R. Kalutara, d,194 a.
Prescription—Cause of action—When it arises—Sale by wife—Action byhusband to eject purchaser—Claim in reconversion by purchaserfor refund of price.
First plaintiff’s wife sold a land in 1902 to defendant, withoutfirst plaintiff’s consent. The plaintiffs instituted this action aboutnine years thereafter for ejectment. The defendant claimed inreconvention the price he paid for the land.
HMf that the defendant’s claim in reconvention was notprescribed.
The cause of action arose only when the plaintiffs began todisturb the defendant in his possession.
rpHE facts appear from the judgment.
A, St, V. Jayewardene, for the defendant, appellant.-—The defend-ant purchased under an invalid deed. As long as he possessedthe land conveyed to him he had no grievance against his vendors.The cause of action arose when the plaintiffs took steps to ejectdefendant. See Cowper v. Godrnond
E. W. Jayewardene, for the plaintiffs, respondents.—It was heldin Martelis Appu v, Jayewardene 2 that in a case' like the presentprescription began to run from the date of the payment of themoney, and not from the date when the vendee was dispossessed.InCowper v, Godmond 1 the facts were different. The annuity therecould not have been declared void except at the option of the partypleading prescription. In this case the deed was invalid, as thehusband had not joined in the execution.
A. St, V, Jayewardene, m reply.
Cuf, adv. vult.
March 11, 1913. Lascelles C.J.—
This appeal raises a question with regard to the law of prescriptionin the following circumstances.
In 1902 one Dosanhamy, who was the wife, married in community,of the first plaintiff, and the'mother of the second and third plaintiffs,conveyed her interest in a certain land to the defendant. Dosah-hamy’s interest in the land is alleged by the defendant to have beensold to him ta provide the means for the maintenance of Dosanhamyand her children.
i 9 Bing. 748.
* (1908) 11 N. L. R. m.
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The claim in the present action is to eject the defendant from thisland, and in the course of the trial it was admitted that this claimmust succeed, inasmuch-as the first plaintiff, Dosanhamy’s husbandwas not a party to the deed transferring the property to the defend-ant. The dispute is with regard to the defendant’s claim inreoonvention for Rs. 120, the consideration for the sale, which sumthe defendant states was utilized for the plaintiffs’ benefit.
The plaintiffs contend that this claim is prescribed, and the learnedCommissioner has upheld their contention.
The crucial question is with regard to the point of time at whichthe cause of action arose. The plaintiffs’ case, as presented to uson appeal, is that the cause of action arose in 1902, when the defend-ant’s deed was executed. The defendant’s case is that he had acause of action for the refund of the purchase money only when theplaintiffs took steps to eject him from his share in the land.
The defendant’s counsel referred me to Cowiper v. Godmorid.1 Inthat case the defendant had granted a life annuity to two persons,and the plaintiffs were the executors of the estate of the survivinggrantee. Six years later the defendant succeeded in setting asidethe annuity on account of a defect in the memorial of the annuity.Two years after that the plaintiffs sued to recover the balance of theconsideration money paid for the annuity. The question then arosewhether claim was barred by the Statute of Limitations. Thepoint on which the decision turned was whether the cause of actionarose when the consideration for the annuity* was paid car when thedefendant avoided the annuity. The Court of Common Pleas held,for reasons which appear to me quite applicable to the present case,that the cause of action arose only when the annuity was avoided.
Tindal C.J. observed that if the decision were otherwise thegrantor of a defective annuity might in every case defraud theannuitant by paying the annuity for six years, and then havingset aside the securities by pleading the Statute of Limitations.Park J. held that the grantee could not have sued until the grantorhad set aside the annuity, and until he could the cause of action wasnot complete. Alderson J., in language which seems to me parti-cularly apposite to the present case, observed, " it may be concededthat the consideration money was money had and received by thegrantor at the time of payment, but it was not had and received bythe grantor, to the use of the grantee, until the grantor elected totreat the annuity as void.*’ This reasoning appears to me to beprecisely applicable to the circumstances of the present case. It isobvious that if the cause of action is held to have accrued at thedate of the deed a door would be opened wide for fraud. Thegrantor of a non-notarial conveyance would only have to wait forthree years to enable him to avoid the conveyance without beingmade responsible for thq refund of the purchase mdney. Further,
* 9 Bing. 748.
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it' did not lie with the defendant to set aside the deed which he ha£presumably accepted in the belief that it was valid; he waB inpossession, he had got what he bargained for; and it was only whenthe plaintiffs took steps to eject him that he had any ground ofcomplaint or cause of action against the plaintiffs. In my opinionit is quite clear that the cause of action arose only when the plaintiffsbegan to disturb the defendant in his possession, and the defendant’sclaim in reoonvention is not prescribed.
Counsel for the plaintiffs-respondents pressed me with the decisionin Martelie Appu v. Jayewardene,1 which it was contended wasconclusive of the present case. This is not a proper occasion toconsider whether, in the light of the English authority to which. I have referred, this decision would be followed by a Court whichhad jurisdiction to review the decision. It is enough to point outthe material difference which exists between the facts of the twocases. In Marielis Appu v. Jayewardene 1 the plaintiff took actionto enforce a verbal agreement by the first defendant to sell him apiece of land for Bs.. 800; he averred that he had paid Bs. 720 ofthis sum, and claimed that the first defendant should be called onto. execute a transfer, and in the alternative to refund the Bs. 720.The decision was based on the ground that the cause of action arosewhen the money could have been recovered, i.e., immediately onpayment. However that may have been in that case, it cannot becontended in the present case that the defendant had a cause ofaction immediately on the execution of the transfer, at a time whenhe had been placed in possession of the land and had apparently gotall that he had bargained for.
For the above reasons, I hold that the defendant’s claim for arefund of the consideration paid for the land is not prescribed. Thejudgment is set aside, and the case remitted to the Commissioner"or adjudication on the footing that the, defendant’s claim is notrescribed. With regard to costs, the defendant-appellant isititled to the costs of the* appeal. The order made by theommisskme; as to the costs of the trial is set aside, and at theinclusion of the tried the ipomu^issioner rill make such order asregards the costs of the trial as he may- think just.
Se$ aside. i
i (1908) UN. L. R. m
SILVA et al v. SILVA