Chellapah V. Mcheyzer Et Al.,

1937 Present : Poyser and Soertsz JJ.

CHELLAPPAH v. McHEYZER et al.

274-D. C. Colombo, 46,747.

Warranty-Express covenant to warrant and defend title-No warranty of title-Remedy of purchaser-Roman-Dutch law.

Where in an agreement for the sale of land there is an express covenant to warrant and defend title, the purchaser is not entitled to withdraw from the sale on the ground of a defect of title in the vendor.

Where there is an express warranty of title the purchaser is entitled to refuse to complete the sale if he is able to show that the vendor has not the good title he warranted.

An express warranty of title occurs when a vendor in so many words warrants that he has a good and lawful title.

James v. Suffa Umrna (17 N. L. R. 33) followed.

Fernando v. Per era (17 N. L. R. 161) and Babapulle v. Umma (4 C. W. R. 420) distinguished.

THE plaintiff brought this action against the second defendant-appellant and another defendant, a licensed auctioneer, alleging that the defendant-appellant through the other defendant put up for sale two allotments of land of which he was declared the purchaser. He alleged that in compliance with the conditions of sale he paid to the auctioneer two sums of money which represented one-tenth of the purchase price of the two allotments. He averred that the first defendant (the auctioneer) at the sale declared that a good, valid, and marketable title would be made out for the said allotments. Alternatively he pleaded that the defendants impliedly agreed to make out and convey a good, valid, and marketable title. The second defendant in his answer denied that any representation with regard to a good, valid, and marketable title was made either by him or the first defendant. He pleaded that the plaintiff had made default in the payment of the balance purchase price and that under the terms of the conditions of sale he forfeited the one-tenth purchase price he had paid and also became liable to pay the difference between the price at which he had bought the two lots and the price realized at the subsequent sale and he claimed the difference.

The learned District Judge held that there was an express warranty of title and gave judgment for the plaintiff.

N. E. Weerasooria (with him Corea), for second defendant, appellant.-An express warranty of title must be distinguished from an express covenant to warrant and defend title. A vendor whether he says so expressly or not is bound to warrant and defend title. He is not obliged to convey good title but merely to give vacant possession. (James v. Suffa Umma [1 17 N. L. R. 33]) We are prepared to give vacant possession.

H. V. Perera (with him E. B. Wikramanayake), for plaintiff, respondent.-There was a statement by the auctioneer that the appellant had a good and marketable title. Plaintiff bought on that representation. "That amounts to a warranty of title. At any rate, if the representation

was false, the contract is voidable. The Judge has found that at was false. The appellant cannot on his own showing convey the title. See Misso v. Hadjiar [1 19 N. L. R. 277. ] Fernando v. Perera [2 17 N. L. R. 161.] .

N. E. Weerasooria, in reply.-The issue as to the false representation was abandoned at the trial.

Cur. adv. vult.

April 19, 1937. SOERTSZ J.-

The plaintiff brought this action against the defendant-appellant and another defendant, alleging that on certain notarially attested conditions of sale, the defendant-appellant, through the other defendant who is a licensed auctioneer, put up for sale certain allotments of land, and that at that sale he the plaintiff was declared the purchaser of two of those allotments at the prices of Rs. 3,800 and Rs. 3,700. He stated that in compliance with the conditions of sale which he signed, he paid to the auctioneer the sum of Rs. 582 and Rs. 627.50, which represented one-tenth of the purchase price of the allotments he had bought,

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