Jamis V. Suppa Umma Et Al.

[Full Bench. ]

Present: Wood Renton A. C. J., Ennis J., and De Sampayo A. J.

JAMIS v. SUPPA UMMA et al.

295-D. C. Kandy, 21, 941.

Sale of land by auction-Notarially attested conditions of sale signed by purchaser-Defect in title of vendor-May purchaser repudiate sale ?-Warranty-Vacant possession.

A purchaser of a land at an auction who signs notarially attested conditions of sale agreeing to complete the purchase is not entitled to withdraw from the sale on the ground of any defect of title of the vendor; in the absence of fraud on the part of the vendor, and of an express warranty of title, he is only entitled to get vacant possession.

The defendant caused a land to be put up for sale by public auction, and plaintiff became the purchaser, and signed notarial conditions of sale agreeing to complete the purchase. Thereafter plaintiff, alleging that the defendants title was defective, claimed in this action a refund of the sum paid by him as auctioneer's charges and other expenses incurred by him in investigating the title.

Held (per Wood Renton A. C. J. and DE Sampayo A. J., Ennis J. dissentiente), that plaintiff was not entitled to decline to accept vacant possession on the ground that his vendor's title was defective.

Wood Renton A. C. J. -In the absence of fraud or of an express warranty of title, the only primary obligations resting on the vendor of immovable property are to give the purchaser " vacant possession, " that is to say, possession unmolested by the claim of any other person in possession of the property sold, and to warrant and defend the title which he conveys, after the purchaser, once placed in possession, has been judicially evicted.

APPEAL from a judgment of the District Judge, Kandy (F. R. Dias, Esq. ).

The facts are set out in the judgment of Wood Renton A. C. J. and De Sampayo A. J.

The case was reserved for argument before three Judges by Ennis J. and De Sampayo A. J.

Bawa, K. C. (with him E. W. Jayewardene, J. S. Jayewardene, and L. H. de Alwis), for appellant. -The land sold is burdened with a fidei commissum. The first defendant had no title to sell. He is only entitled to a life interest at present. What the auctioneer sold

was the land itself, and not the life interest. It is open to the purchaser to withdraw from the sale on finding that the vendor has no title.

[De Sampayo A. J. -Is it clear that the land is burdened with a fidei commissum ?] It is on that footing that the case was argued and reserved for the consideration of three Judges. [Wood Renton A. C. J. -Let us assume that there is a defect of title for the purpose of this argument. ]

There is no difference between the English law and the Roman-Dutch law as to the rights of parties in the case of sales by auctioneers. See Marshall's Judgments 46.

The first defendant was guilty of fraud, in that she did not disclose to the plaintiff all the information she possessed as to her title. See Halsbury's Laws of England, vol. XXV., p. 302, ss. 510 and 511.

Inasmuch as this sale was by auction, the English law applies. The rights and obligations of an auctioneer are governed by the English law, and not the Roman-Dutch law, if there is a conflict between the two laws.

Counsel cited Carlisle v. Salt, 1 re Hædicke and Lipski's Contract, 2 Ellis v. Rogers, 3 re Gloag and Meller's Contract, 4 Chitty on Contracts 353.

Even under the Roman-Dutch law the vendor must give possession and title. [Wood Renton A. C. J. -Alagiawanna Gurunnanse v. Don Hendrick et al. 5 is a Full Court judgment against you. The vendor's obligations are to give vacant possession and to give a warranty against eviction. ] The facts of that case are different. In that case there was a completed lease. Here there is only an agreement to purchase. A would be purchaser should not be forced to enter into a sale when he knows that the vendor has no title.

In Ratwatte v. Dullewe6 the vendor gave title, but not posse

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