036-NLR-NLR-V-11-VANDERPOORTEN-v.-SCOTT.pdf
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Present: The Hon. Sir Joseph T. Hutchinson, Chief Justice,. and Mr. Justice Wendt.
VANDERPOORTEN v. SCOTT.
D. C., Colombo, 24,290
Vendor and vendee—Implied warranty of title—Express covenant . towarrant and defend title—Exclusion of implied obligation.
Where in a deed of conveyance the vendor expressly covenantedthat the premisesconveyed were freefromencumbrance,and that
he would always warrant and defend the same against any personswhomsoever, andwhere the vendee,whohad sufferedeviction,
brought an actionfor damages basedonsuch expresscovenant—
Held, that thia express covenant in the deed excluded theobligation impliedby law on the partof the vendor togive good
title to the vendee, and that – the plaintiff must be confined tosuch express stipulation.
A
PPEAL by the plaintiff from a judgment of the District Judgeof Colombo.
The facts are fully stated in the judgment of the Chief Justice.Sampayo, K.C., for the plaintiff, appellant.
A. Drieberg, for the defendant, respondent.
Cur. adv. vult.
April 1, 1908. Hutchinson C.J.—
This is an appeal by the plaintiff from an order of the DistrictCourt disallowing an issue proposed by the plaintiff.
The plaintiff alleged that the defendant had sold him a half shareof the lands described in the plaint, and that by the deed of transferthe defendant covenanted with him that the premises therebyconveyed were free from incumbrances, and that the defendant wouldwarrant and defend the same to >$he plaintiff against any personwhomsoever. He then alleged that he had entered into possessionof the land and spent money in the improvement and cultivationthereof; that the Government Agent afterwards, under the provi-sions of the Waste Lands Ordinances, gave the notice required bythe Ordinances in respect of the land, and the plaintiff duly madeiv. clairn^ in yespeot thereof, which claim was in the mannerprescribed by the Ordinances inquired into and ultimately referredto the District Court of Kurunegala; that the plaintiff filed hiastatement of claim, and gave notice to the defendant of the claim madeby the Crown, and called upon the defendant to warrant and defendhis title; that the defendant failed to do so, and that the Courtdismissed- the plaintiff’s claim and declared the Crown entitled tothe land, whereby the plaintiff was evicted from it. The plaintiffaccordingly claimed- damages.
1908.
April 1.
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J908. The defendant in his answer stated that by the deed of transfer itApril l. waa agreed that he would warrant and defend the plaintiff's title,Hutchinson and do all such further and other acts, deeds, matters, and thingsC.J. for the further assurance of the plaintiff at the request and cost of theplaintiff. He also alleged that the plaintiff entered into possessionof the land more than a year before the execution of the deed Oftransfer; and he denied that the plaintiff gave him due notice, orcalled upon him to warrant and defend title to the land as required bylaw; and he denied that he failed to warrant and defend the plain-tiff’s title as alleged, and pleaded that it was wholly due to theplaintiff’s neglect and default in and about the conducting of thedefence that his claim was dismissed; and he asserted that his titleto the land was a good and valid one, and that, had the plaintiffused due diligence and skill and given the defendant timely noticeof the action, the plaintiff would have been successful in his defenceagainst the Crown. He also pleaded in the alternative that thedamages claimed were excessive;
Three issues were framed:—Whether the plaintiff entered intopossession under his conveyance, and thereafter spent money incultivation and improvements before his eviction; whether he gavethe defendant sufficient notice to warrant and defend his title in theKurunegala action; and as .to amount of damages.The plaintiff’s
counsel then submitted the following issue:—“ Had the defendantany title to convey to the plaintiff? ” The defendant’s counselobjected to it; the Judge at first allowed it, but, after the plaintiff’scounsel had opened his case, disallowed it, being of opinion that theonly essential issue was the second, i.e., whether the defendant hadbeen noticed to warrant and defend the title which he had conveyedto the plaintiff.
The proposed issue does not arise on the pleadings, for the claimas set out in the plaint is for breach of an express covenant containedin a deed, and the plaint does not allege that there was any covenantor agreement, either express or implied, that the defendant had atitle, nor does it allege that he had no title.
The plaintiff’s counsel contends, however, that where a purchaserof land has been sued and evicted in an action by a person claimingunder a title superior to that of the vendor he can sue the vendorfor breach of warranty of title, although he had not given his vendor' notice of the action, if he can prove that the vendor “ had no shadowof title, ” and in support of that view he referred to Perera v. AmaiiaAppu,1 Fernando v. Jayawardena,2 Van Leeuwen 4, 19, 10, 11, andVoet 21, 2, 22. He says that if this contention is right he will beentitled to succeed if he proves that the defendant had no title, evenwithout proof that he notified the defendant of the Kurunegalaaction. He has not asked either the District Court or this Court forleave to amend the. plaint by alleging that the defendant had no title.
i (1878) 1 S. C. C. 54.
(1896) 2 N. L. R. 809.
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But I think that, if we were satisfied that the above contention is 1908.right, it would be right to give leave to amend the plaint and to add AprUl.the proposed issue. Kotze’s Van Leevwen II. 143 says: “ If such Hutchutsonnotice be not made in time to the vendor, the purchaser will notc J- ,
have any right to compensation; except where the right of
the claimant clearly appears, and that the vendor had no right tothe thing sold, and the purchaser takes upon himself to prove this,in which case the vendor will likewise, without any previous notice,be obliged to make compensation. V And Voet SI, 2, 22 is to ,thesame effect. This, however, must refer to the obligations which thelaw implies in the absence of express stipulations by the partieswhich appear to exclude .those implied by law. In this case theplaint states that there was an express covenant by the vendor thatthe property is free from incumbrances, and that he will warrantand defend it. Was it intended that, in the absence of fraud, whichis not alleged, the rights of the parties should be governed by thiscovenant alone, or is the vendor also liable on an implied covenantthat he had a good title.
The case of Perera v. Amaris Appu1 contains a general statementas to the rights of a purchaser who has been evicted against thevendor, but nothing on this point. In the case of Fernando v. Jaya-icardenas the only matter decided was a question on the PrescriptionOrdinance, which the headnote to the report ignores.
In Silva v. Ossen Saibo,3 before Burnside C.J. and Lawrie andWithers JJ., the deed of conveyance contained a covenant whichthe Court held to be limited to the vendor’s own acts and to disputesarising therefrom: the plaint recited the deed, and alleged that theplaintiff had been ousted by the Crown, and that the defendant hadno .title, and contained no allegation of an implied Covenant, and ondemurrer it was held that this disclosed no cause of action. TheCourt did not consider whether any covenant might be implied, inaddition to the express covenant, because the libel referred only tothe latter. The Chief Justice made some disparaging remarks about“ this alleged doctrine of implied warranty on every sale, ” whichdo not seem relevant to the point which was before the Court.
In the present case neither the deed of transfer nor any copy of itis in evidence; but, assuming that the covenants in it are correctlystated in the plaint, in my opinion no further or other covenantfor title can be implied; the vendor must be taken to have intendedto rely on the express covenants only. I would therefore dismissthe appeal witn '■osts.
Wendt J.—
The obligation of a vendor upon contract of sale is to give bisvendee free and undisturbed possession (vacua possessio) of the
I {1878; l 8. C. C. 64.* (1896) 2 N. L. It. 309.
• (1891) 8 C. L. B. 79.
14
( iso )1908.
April 1.
Wbndt J.
subject of sale and to guarantee him against “ eviction ” (disposses-sion by prooess of law at the suit of any third party) (see D. C.,Badulla, No. 1,886; Koch 30; 3 Maasdorp’s institutes 133, 134,143). This obligation arises from the bare contract of sale. ButjuBt as there might be added to the contract collateral parts suchas are enumerated in Voet 18, 1, 26, so also may the parties agreeby express convention to limit the obligation which the law wouldotherwise imply (D. C., Badulla, No. 1,336, cited above; Silva v.Ossen Saibo1). In the present case the defendant did not covenantthat he had a good title, but he did expressly covenant thatthe premises conveyed were free from encumbrance, and that hewould always warrant and defend the same to plaintiff against anyperson or persons whomsoever. On the principle expressum facitcessare taciturn, I .think that the express covenant excludes recourseto the implied obligation, if it be the case that the law does implya covenant that the vendor is the true owner.
I agree, therefore, that the learned District Judge rightly shut outthe proposed issue, and that the appeal should be dismissed withcosts.
Appeal dismissed.
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