113-NLR-NLR-V-43-ZACHARIAN-v.-FERNANDO.pdf
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JA'YETIL.'EKE J.—Zacharian v. Fernando.
1942Present : Hearne and Jayetileke JJ.
ZACHARIAN v. FERNANDO.202—D. C. Kalutara, 22,075.
Compromise—Partition action—Agreement by defendant to sell his intereststo plaintiff—-Claim by plaintiff for covenant to war-rant and defendtitle—Repudiation of compromise.
Where a partition action was settled on the terms that the defendantshould transfer his interest in the land to the plaintiff and where theplaintiff asked the defendant to execute in his favour a deed of transfercontaining a covenant to warrant and defend title,
Held, that' the plaintiff was not entitled to ask for a covenant towarrant and defend title and that his refusal to accept a deed withoutsuch a covenant amounted to a repudiation of the compromise.
^^PPEAL from a judgment of the District Judge of Kalutara.
H. 'V. Perera, K.C. (with him U. A. Jayasundere and P. Malalgoda),for second defendant, appellant.
N. Nadarajah, K.C. (with him A. C. Nadarajah), for plaintiff, respondent.
Cur. adv. vult.
July 31, 1942. Jayetileke J.—
The plaintiff instituted action No. 20,754 of the District Court ofKalutara against the first defendant and fifteen others for the partitionof a land. The.first defendant filed answer claiming a half share of the
JAYETILEKE J.—Zacharian v. Femando.
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land and certain other interests. On July 10, 1940, the action wassettled on the following terms, which were entered on the record : —“ The first defendant consents to transfer all his interests to the plaintiff.Asifern withdrawn. It is dismissed without costs. ”
This settlement is, in my opinion, a compromise as understood in law.According to Voet, transaction (compromise) is an agreement concerninga doubtful thing or an uncertain lawsuit; a non-gratuitous agreement,something being given, retained or promised (Bk. 2, Ch. 15, Sec. 1).
The parties are agreed that the true consideration for the compromisewas 5 sum of Rs. 450 to be paid by the plaintiff to the first defendanton the execution of the transfer, though it was not mentioned to Court.The plaintiff verbally requested the first defendant to accept the sum ofRs. 450 and to execute in his favour a deed of transfer containing acovenant to warrant and defend the title. The first defendant was notwilling to enter into the convenant suggested by the plaintiff. Theplaintiff then decided to accept a deed of transfer without the warrantyclause but changed his mind soon after and sent a telegram (D 1) to thefirst defendant's proctor, which reads:—“Cannot accept deed withoutconditions. Proceed action 20,754. ”
A few days later, the plaintiff sent a letter of demand (P 3) to the firstdefendant calling upon him to execute a deed “ according to the termsof agreement entered in case No. 20,754 D. C. Kalutara ”. The firstdefendant sent a reply (P 4) to the telegram (D 1) and the letter of demand(P 3). in which he stated that he was obliged to accept another offeras the plaintiff had by his telegram (D 1) declined to purchase his interests.The plaintiff thereupon instituted the present action against the first andsecond defendants to enforce the compromise but did not ask that theyshould be ordered to enter into a convenant to warrant and defend the title.
The learned District Judge held that the second defendant had noticeof the compromise and entered judgment against both defendants,ordering them to execute a transfer in favour of the plaintiff.
The questions which fall for decision in this appeal are whether theplaintiff was entitled to' a covenant from the first defendant that: hewould warrant and defend the title and, if not, whether the refusal byhim to accept a deed without that covenant constituted such arepudiation of the compromise as to constitute a breach.
Under the Roman-DutGh Law a vendor is under an obligation to warrantthe purchaser against eviction. – Voet says that responsibility for evic-tion finds scope in compromise where the possessor of the actual thingin dispute has transferred it to his opponent, having received somethingelse for the compromise as if rather a sale than a compromise had takenplace. (Bk. 21, Ch. 2, Sec. 10) (Berwick’s Translation, p. 506.)
The warranty would ordinarily be implied unless it had been, in fact,expressed in the deed. There is a distinction between warranty expressand implied and the liability of the vendor varies as there is a latent orpatent defect in the thing sold.
VctnLeeuwen says that if the purchaser knows from the beginningthat the thing bouglvt belonged to another or that another person has
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HOWARD C..T.—The King v. W. P. Buckley.
some rights over it, the vendor is not even bound to restore the purchaseprice unless he has expressly stipulated that he would do so in case ofeviction. (Censura Forensis. Bk. IV., Ch. 19, Sec. 14.)
In the absence of an express stipulation in the compromise, 1 do notthink the plaintiff was entitled to insist on the first defendant enteringinto a covenant: to warrant and defend the title.
By D 1 the plaintiff gave the first defendant clear and definite noticethat he had abandoned his rights under the compromise and had decidedto fall back upon his original position in action No. 20,754. The firstdefendant was, in my opinion, entitled to treat such notice as a breachof the compromise and to convey his interests to the second defendant.
I would set aside the judgment appealed from and dismiss the plaintiff’s;action with costs here and in the Court below.
Hearne J.—I agree.
Appeal allowe i.