081-NLR-NLR-V-23-TIYADORIS-et-al.-v.-SADISHAMY.pdf
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Present: Bertram C. J. and De Sampayo J,TIYADORIS el al. v. SADISHAMY.
105—D.C.OdUe,17,6$7.
Sale of land alleging tide by grant from father—Father entitled to onlyhalf—A portion of other half inherited from mother—Actionrei vindicatio against widow of vendor—Is widow entitled to ashare of portion inherited by husband from his mother t
A claiming to be owner under a deed from his father sold adivided one-fourth share of a land to the plaintiff. In an actionrei vindicatio against A’s widow, she pleaded that A’s father wasentitled to only one-eighth, and that her husband became entitledto another one-fortieth share through his mother, and that thatshare was not sold to plaintiff.
Held, that the defendant (widow) had no title to any portion ofthe one-fortieth share as heir of her husband.
“ When two parties have agreed for the conveyance of a definitecorpus from one to the other, the vendor cannot derogate from hisown grant by setting up the plea that he was not in fact entitledto so much as he granted, but that he has another interest in theproperty which he has never conveyed, and which he retains tohimself* The heir of the vendor must be in the same position*”
fJIHE facts appear from the judgment.
V. Perera, for the appellant.
Pereira, K.G. (with him Amaresekera), for the respondents.
November 17,1921. Bertram O.J.—
In this case the widow of the vendor of certain interest was suedin a rei vindicatio action by the purchaser. She says in effect: “ Itis tftie my husband sold you the land in question, but Mfiiad not afull title to it. He purported to convey one-fourty deriving histitle ultimately from a deed granted by his father. He assertedthat this one-fourth share, originally undivided, had by possessionand improvement been converted into a divided one-fourth. But,cs a matter of fact, he had no title to a one-fourth at all. Hisfather was married in community. My husband, under the deedthrough which he traced his title thus, only acquired one-eighth, andnot one-fourth. You, therefore, only acquired one-eighth from myhusband. My husband, however, also, as one of five children,inherited one-fortieth share from his mother. That one-fortieth hehas never conveyed to yon. As one of my husband’s heirs, 1 am
1921.
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1921;
Bertram
C.J.
Tiyadoria v.Sadiahamy
entitled to a share in that one-fortieth, and standing on that I resistyour claim to eject me from the land of which I am a part owner.”
Various side issues have been discussed in the case. Was theinterest which the vendor’s father purported to convey acquiredduring the community or after the death of the wife ? Had thedivided one-fourth share been, in fact, converted into a dividedshare by prescription? In the view which we take of the case, I donot think that it is necessary to decide those questions. The case
think turns upon an equitable principle. When two parties haveagreed for the conveyance of a definite corpus from one to theother, the vendor cannot derogate from his own grant by settingup the plea that he was not in fact entitled to so much as he granted,but that he has another interest in the property which he has neverconveyed, and which he retains to himself. The heir of the vendormast be in the same position.
The vendor sets up another plea. She states; “Granted that Icannot set up a title inconsistent with my husband’s conveyance,as a matter of fact, I am not on the land as apart owner; I am thereas a tenant of my brother-in-law. He, too, inherited one-fortiethfrom his mother, and, being his tenant, I cannot be ejected by theplaintiff.” The evidence of this tenancy is, however, extremelyshadowy. I do not think it can be accepted. It was referred to in. the judgment in another action brought between the same partieswhen the plaintiff sued the defendant for rent as his tenant. It wasthere referred to only incidentally, and was not, I think, seriouslyor fully considered.
There are certain previous authorities which have been referredto, namely, Sandris v. Dinakahamy,1 and a case at present un-reported (D. C. Matara, 8,999 2). These cases, however, turn, Ithink, on the terms of the particular conveyances. It does notappear that in these cases the parties had agreed for the conveyanceof a definite corpus. All that the conveyance passed and intendedto pass in these cases was a certain undivided interest. In thiscase the land had been marked off by a fence. The vendor claimedthe whole of it. The purchaser dealt with on the supposition thatthe vendpr was the owner of the whole of it, and it was intendedthat that property should pass as a definite corpus. For thereasons I have explained I would dismiss the appeal, with costs.
Da Sampayo J.—I agree. *
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'(1910)6 801.75.
* & C. Min., Oct. 14,1922.