Present: Lascelles C.J. and Pereira J.

FERNANDO v. PERERA.

53-D. C. Colombo, 38,580.

Agreement to tell land and to execute a valid conveyance-Vendor's title defective-Is purchaser bound to accept a formal conveyance?

Plaintiff and defendant entered into a notarial agreement that the latter should sell to the former, within a month from the date of the agreement, a certain parcel of land and " execute a good and valid conveyance of the premises free from all encumbrances in favour of plaintiff." Within the period of one month mentioned above plaintiff discovered that defendant's title was defective, and that he could not convey a valid title to the land.

Held, that plaintiff was not bound to accept from defendant a formal conveyance of the land, and that he was entitled to recover damage from defendant for non-performance of his part of the agreement.

Pereira J.-The rule of the Roman-Dutch law, that in the case of a sale of land the purchaser cannot claim a cancellation of the contract owing to any defect of title in the seller would, under our law, apply to the time between the execution of the notarial conveyance and the delivery of the deeds to the purchaser, and not to the case of merely an agreement to sell.

THE facts are fully set out in the judgment.

Bawa, K.C., and Drieberg, for plaintiff, appellant.-The property is burdened with a fidei commission. The defendants are not, therefore, in a position to give good title. A purchaser is not bound to accept a defective title. The view taken by the District Judge that the vendors are only bound to place the purchaser in possession, and that the purchaser's remedy is to sue the vendors when evicted, is not correct. [Pereira J.-Are you not bound by the decision of the Full Court in Jamis v. Suppa Umma et al.? 1] The facts of that case are entirely different. The agreement in this case speaks of a " good and valid conveyance free from all encumbrances." This does not mean merely a notarial conveyance. Counsel referred to Halsbury's Laws of England, vol. XXV., p. 341; Lysaght v. Edwards.2

A. St. V. Jayewardene, Bartholomeusz, and Canakeratne, for defendants, respondents.-This case is on all fours with the decision of the Full Court in Jamis v. Suppa Umma et al.1 The English law, as stated by Halsbury, depends to a great extent on the statute law in England. English decisions on the duties of vendors and purchasers habe no application here. The words " good and valid conveyance

1 (1913) 17 N. L. R. 33.

 2 2 Ch. D. 507.

cannot have any reference to the title of the vendor. It means only , a deed in conformity with Ordinance No. 7 of 1840. The Roman-Dutch law is clear on this point. The purchaser must in the absence of any express terms take whatever title the vendor has, provided he is placed in possession. In this case, the plaintiff himself knew that this property was subject to fidei commissum-for the agreement is signed by the lather (fiduciarius) and children (fidei commissarii). The case of Lysaght v. Edwards 1 merely decides that in a contrast for sale of land the vendor becomes trustee for the purchaser, and that the vendor is therefore bound to take reasonable care of the property. Counsel cited Burge, vol. II., p. 540.

Bawa, K. C., in reply.

March 21, 1914. Lascelles C. J. -

This appeal raises a question of some importance with regard to the liability of persons who have contracted to buy property to complete the contract where the vendor is unable or unwilling to make a good title.

By deed dated February 10, 1913, between the first defendant and his two daughters (the second and fourth defendants) of the one part and the plaintiff of the other, the former agreed to sell and the latter agreed to purchase certain property at Moratuwa, within one month from the date of the agreement, for Rs. 13, 250. The deed contained a stipulation that the vendors should " execute a good and valid conveyance o