Vanderpoorten V. Scott

Present: The Hon.   Sir Joseph T.  Hutchinson,   Chief Justice,

 

VANDERPOORTEN v. SCOTT.

 

D. C., Colombo, 24,290

 

    Vendor and vendee-Implied  warranty  of title-Express  covenant  to warrant and defend title-Exclusion of implied obligation.

 

Where in a deed of conveyance the vendor expressly covenanted that the premises conveyed were free from encumbrance, and that he would always warrant and defend the same against any persons whomsoever, and where the vendee, who had suffered eviction, brought     an    action    for     damages    based    on    such     express     covenant-
 

Held, that this express covenant in the deed excluded the obligation implied by law on the part of the vendor to give good title to the vendee, and that the plaintiff must be confined to such    express  stipulation.

 

APPEAL by the plaintiff from a judgment of the District Judge of 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 District Court disallowing an issue proposed by the plaintiff.

        The plaintiff alleged that the defendant had sold him a half share of the lands described in the plaint, and that by the deed of transfer the defendant covenanted with him that the premises thereby conveyed were free from incumbrances, and that the defendant would warrant and defend the same to the plaintiff against any person whomsoever. He then alleged that he had entered into possession of the land and spent money in the improvement and cultivation thereof; that the Government Agent afterwards, under the provisions of the Waste Lands Ordinances, gave the notice required by the Ordinances in respect of the land, and the plaintiff duly made a claim in respect thereof, which claim was in the manner prescribed by the Ordinances inquired into and ultimately referred to the District Court of Kurunegala; that the plaintiff filed his statement of claim, and gave notice to the defendant of the claim made by the Crown, and called upon the defendant to warrant and defend his title; that the defendant failed to do so, and that the Court dismissed the plaintiff's claim and declared the Crown entitled to the land, whereby the plaintiff was evicted from it. The plaintiff accordingly claimed damages. 

 

But I think that,  if we were  satisfied that the above contention is  right, it would be right to give leave to amend the plaint and to add  the proposed issue.   Kotze's  Van Leeuwen II.  143 says:   "If such notice be not made in time to the vendor,  the purchaser will not   have  any right to compensation; except  where  the  right  of he claimant clearly appears, and that the vendor had no right to the 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. " And Voet 21, 2, 22 is to ,the same effect. This, however, must refer to the obligations which the law implies in the absence of express stipulations by the parties which appear to exclude those implied by law. In this case the plaint states that there was an express covenant by the vendor that the property is free from incumbrances, and that he will warrant and defend it. Was it intended that, in the absence of fraud, which is not alleged, the rights of the parties should be governed by this covenant alone, or is the vendor also liable on an implied covenant that he had a good title.

The case of Perera v. Amaris Appu1 contains a general statement as to the rights of a purchaser who has been evicted against the vendor, but nothing on this point. In the case of Fernando v. Jaya-ivardena2 the only matter decided was a question on the Prescription Or

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