049-NLR-NLR-V-18-WIJESINGHE-et-al.-v.-CHARLES.pdf
Pmgnt: Wood Benton G.J. end De Sampayo A.J.WUESiNGHB at <d. e. CHARLES£1—b. C. Colombo, 38,78*.
Fotlsr 8Sd purchaser—Right of vendor to bring action after sah to ejecttenant after giving notice to quit—Landlord and tenant.
Where a purc&acer has no* elected to toko & property with thevender's tenant in occupation andinsists on the vendor giving
him free and oxdnstve possession, the contract of tenancy as betweenthe vendor and the tenant continues, and the vendor may, in spiteof the sale, take the ordinary steps to eject him and recover damages*
fJlHE foots' are fully set out in the judgment.
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A. St. V. Jayewarden*, for defendant, appellant.
E. W. Jayewardene, for plaintiffs, respondents.
-Cur. adv. vult.
February 19, 1915. Dk Sampayo A.J.—
The defendant was & monthly tenant of certain premises underthe plaintiffs, who were the owners thereof. On January 8, 1914,the plaintiffs sold the premises to one Y. O. David, and, presumablywith the view of giving possession to the purchaser, they on April 2,
914, gave notice to the defendant to quit and deliver possessionof the premises at the end of May, 1914. The defendant not havingcomplied with the notice, the plaintiffs brought this action to ejectthe defendant, claiming also arrears of rent from October 1, 1913,up to May 81, 1914, and damages for unlawful possession since thelatter date. The defendant in his answer admitted his liability topay the rent up to the date of sale, but denied the validity of thenotice to quit, and pleaded that the contract of .tenancy betweenthe plaintiffs and defendant was determined by the sale of thepremises. The argument on behalf of the defendant is that theeffect in law of the tale was that the defendant became tenant ofthe purchaser and was liable for the rent only to him, and that anynotice to determine the tenancy should be given by him. There isno doubt that under the Roman-Dutch law a purchaser has the rightto recover the rent accruing since the sale from a tenant who hadbeen let in by the vendor. The authorities on the point will befound collected in Silva v. Silva.1 That decision also went to theextent of holding that .the purchaser could enforce, not *only thepayment of rent, but also the other obligations of a tenant, thoughin my judgment in that case I acceded to this view with some
‘ (1918) 1$ N. L. R. 818.
( 1«9 )
hesitation. The defendant in this casegees a step # further. and38M.
maintains that top purchase? is hound,whether be is wiffiag
not, to accept (ho tenant as his own.1 die not think that theAX
authorities go that length. The strongest statement of the law isin Wills on Landlord and Tenant in South Africa SSI, which says:
“ A purchase? from the landlord of the property leased, steps intothe shoes of the landlord mid receives all his rights and becomessubject to all his obligations, so that he is bound to the tenant andthe tenant is bound to him in toe relation of landlord and tenant. ”
But this is no authority for toe proposition that, notwithstandingthe purchaser’s ordinary right to demand from .the vendor vacantpossession of the property sold, he must in all eases be contentto take possession subject to the tenant’s right of occupation. Itseems to me that Voet 19, 2,19, which is the main authority on thissubject, contains an explanation of the underlying principle. For,after stating that a angular successor like a purchaser must bearwith the tenants to the end of the term (ad finem usque ferre debet)if they are wilting to pay him the rent, he says the reason is that,as by .the acquisition of ownership a purchaser would according tonatural reason have had the fruits and use of the thing, it is equitablethat at least what represents the fruits, viz., the rent, should cometo him. That is to say,the perceptionoftherent is a mode of
. possession to which hebecomesentitledbythe purchase,but
nowhere is it stated tost the purchaser is hound to accept suchperformance of the vendor’s obligation to give him vacant possession.
It is clear that a purchaser in this connection has two courses opento him when a third party is in possession of toe property &* thetime of toe sale: he may either stand on toe strength of the titleand sue toe third party in ejectment, or be may at once bring theaction ex empto against his vendor for failure to implement the saleby delivery of possession. (Ghtrunnanse v.' Don Hendrick l.*nnclBabaihamy o. Danchihamy *.) No authority has been cited to showthat the . purchaser can be deprived of either of these alternativeremedies, It is argued,however,thatintoecircumstancestoe
plaintiffs must be takento havegivenvacantpossession tothe
purchaser and thus to have fulfilled their legal obligation, inasmuchas the defendant, who is a mere tenant, cannot dispute the purchaser’stitle. This I think involves » misconception of what vacant posses-sion means. So Hfar as I know, the law does not say that for thepurpose of fulfilling his obligation the vendor need not deliveractual possession, provided that no other person has better titlethan himself. Vacant possession means possession in any case butsuch that no other person can lawfully keep the purchaser out.
Voet 19, 1, 10 defines it. thus:” Vacuum veto possessionem trader*
venditor inteUigitur, cum ita tradit ut res possessori ab aiio avoearinequeat, adeoque emptor in Ktc de possessions potior futurus sit.
TftVfSirTnn^r MifV«
* miff) 19 N, h. ft. 226.
(t9m 16 N. L. ft. 265.
( 170 )
since the very argument for the defendant is that he is entitled3>»a^AVo^> be in poas&ssion as tenant, and that the purchaser is Bound toaccept him as his tenant, it follows, if the argument is sound, that thepurchaser has not had vacant possession within the meaning of thelaw, I find that in South Africa tire Courts have taken a similarview. In SchultzBros. v. Boodepoort Venture Syndicate, * a note ofwhich is given in Delany's Leading Cases on Vanderlinden 104, thedefendants sold: certain lands to the plaintiffs, but it was subse-quently discovered that the owner of an adjoining land had bone fidebuilt a cottage whigh encroached on the land sold. The defendantsrelied ou this very passage in Voet, and argued that, as the adjoiningproprietor could not successfully claim the property from tireplaintiffs, the defendants had given them vacant possession, but theCourt held that the defendants were bound to eject the adjoiningproprietor* Mason J. observing:" The authorities lay down clearly
that a seller must give the purchaser free and exclusive possession. ”It is plain .that such ^free and exclusive ” possession would not begiven if the purchaser were forced to allow the vendor’s tenant toremain in occupation. It was, of course, said that the purchasermight terminate such continued .tenancy by giving the tenant noticeto quit, but that does not affect the principle involved. Bayne’sLandlord and Tenant 37, which was also cited on behalf of thedefendant, does not cany the case further, and, I think, ratherassists the plaintiff’s position; For there the author, after referringto the maxim " hire goes before sale, ” and stating that purchasersare bound by the lease previously made by the vendors, says, “ fromibis arises the privilege of the tenant either to remain the tenant ofthe new landlord or to cancel the lease. ” Voet IP, 2, 19 above citedis practically to the same effect, for what is there said is that apurchaser must bear with the tenants 94 if .they (the tenants) arewilling to pay him rent. ” If, then, the tenant has the privilege ofchoice, I do not see any reason why the purchaser should not havethe corresponding privilege. The purchaser having, then, tha twocourses above mentioned open to him, it would be a question offact in a particular cose whether he has elected to take the propertywith the vendor’s tenant in occupation. If he has not adopted thatcourse, and insists on the vendor giving him free * and exclusivepossession (plena ei vacua posse&eio), it seems to me to follow thatthe contract of tenanoy as between the vendor and the tenantcontinues, and that the vendor may take the ordinary steps to ejecthim and recover damages. In tins case counsel for the plaintiffs.in the Court below offered to call the purchaser Y. X). David to provethat he insisted on the plaintiffs getting rid of the defendant andgivifig him vacant possession, and that in the meantime he refusedto pay the plaintiffs the balance purchase money which was stilldue, but the District Judge considered this evidence would be
* T. B. 1905, 85$.
inwkwfsi In opinion tbs busdrn of'pfoof was, as a natter offaet: 4» to® defs^ds’at, ibd as the iitfon&mi in appeal tabes, up thesam attitude ■» te§aacl« Me fegel firsts os in the District Court,and makes no siiggesflffi as to the nooeositj of evidence, I am not(lisp sed to send Ike ®a-‘s bask on this pains., and would hold on theques aon of law t sat tk* plaiffitiSs* ration was maintainable.
I shink the jut‘ &umfe appealed agmnst is right, and I would dismissthe appeal with .-sets,
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