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APPUHAMY v. SINGHO et al.
NLR15V97
Present: Grenier J.
APPUHAMY v. SINGHO et al.
454-C. R. Matara, 11,645.
Vendor and purchaser-Notice to warrant and defend-May be written or verbal-Mere knowledge of action not enough notice-Merely summoning vendor as a witness not enough.
A vendee should call upon his vendor to warrant and defend his title to enable him to recover the purchase money from his vendor in case he should suffer eviction. The demand to warrant and defend title need not necessarily be in writing, although, perhaps, it is the most convenient form of making the demand. The demand may be verbal-where the vendor is asked by the vendee to intervene in the action and to establish the title that has been conveyed. Merely summoning the vendor as a witness does not constitute a demand to warrant and defend, unless at the time the summons is served the vendor is informed, either verbally or in writing, that the object of the summons is to enable him to intervene in the action in support of the title that has been conveyed to the vendee.
The consequence of not giving notice to the vendor is not obviated by his knowledge of the pendency of the suit.
THE facts are set out in the judgment.
Balasingham, for the defendants, appellants.-The defendants were admittedly not formally noticed to warrant and defend their title in the former action. One of the defendants was merely summoned to give evidence in the former case. That does not constitute a notice to warrant and defend title. The mere fact that the defendants were aware of the pendency of the former case is not enough to enable the plaintiff to call upon them to refund the purchase money. Counsel cited Adonis v. Akolis1 and Baba Sinno v. Sasira.2
Tinahamy v. Nonis,3 on which the Judge relies, does not govern this case. That case merely decided that notice to warrant and defend need not necessarily be in writing. Here there was no notice at all.
Bartholomeusz, for the plaintiff, respondent.-The defendants were aware of the pendency of the action on their own admission. They were summoned to give evidence. The Judge says that defendants' title was easily demolished.
1 (1889) 8 S. C. C. 197. 2 (1901) 5 N. L. R. 34.
3 (1909) 1 Cur. L. R. 216.
Moreover, in this case the defendants have expressly covenanted to " answer regarding the disputes that may be raised by any person whomsoever in respect of the said property, as well as pay compensation to the vendee. " This Is not an action on an implied warranty, and no notice to warrant and defend is necessary.
February 14, 1912. Grenier J.-
The appeal in this case involves a pure question of law. The plaintiff alleged that the defendants sold to him a one-fifth share of a certain land, and that he paid the sum of Rs. 30 and spent a sum of Rs. 4 for executing the deed of transfer and registering the same. The plaintiff also alleged that he instituted case No, 5,910, C. R. Matara, for a partition of the land, and that at the trial the defendants failed to warrant and defend the title to the property they sold, and the plaintiff lost the rights acquired by him by his deed. The defendants raised a question of law in their answer to the effect that no notice was issued on them in case No. 5,910, C. R. Matara, to warrant and defend the sale by them. The defendants raised some points on the merits, but we need not trouble ourselves about them on this appeal. When the case came on for trial there was one issue of law which was agreed to by counsel on both sides. The issue was framed in these terms: " Is the action maintainable, as the defendants were not noticed to warrant and defend title in C. R. 5,910? "
After some argument the Commissioner held that the defendants were admittedly not formally noticed to warrant and defend title, but were aware of the partition action No. 5,910, and that first defendant was summoned as a witness. The Commissioner relied upon a judgment of Wood "Renton J.
