MYBIANTHE HJ. YANNI MARKOULI AND YANNI GEORGHI KOFTERO ν. YANNI HJ. MARKOULI (V3) 1 CLR 32

MYBIANTHE HJ. YANNI MARKOULI AND YANNI GEORGHI KOFTERO ν. YANNI HJ. MARKOULI (V3) 1 CLR 32 ΠΑΓΚΥΠΡΙΟΣ ΔΙΚΗΓΟΡΙΚΟΣ ΣΥΛΛΟΓΟΣ CyLaw | Αναφορικά μ'εμάς | " target="_top">Επικοινωνία | Όροι χρήσης Έρευνα - Κατάλογος Αποφάσεων - Εμφάνιση Αναφορών (Noteup on) - Αρχείο σε μορφή PDF - Αφαίρεση Υπογραμμίσεων (V3) 1 CLR 32 1894 May 10 [SMITH, C.J. AND MIDDLETON, J.] MYRIANTHE HADJI YANNI MARKOULI AND YANNI GEORGHI KOFTERO Plaintiffs, v. YANNI HADJI MARKOULI Defendant. AGREEMENT-DOWER-MARRIAGE-CONSIDERATION-BREACH OF AGREEMENT-DAMAGES. The defendant entered into an agreement with the plaintiffs, whereby, in consideration that the plaintiff Y. would marry his daughter M., he undertook to transfer to her certain immovable properties the value whereof was specified in the agreement. Y. married M., and the defendant put them into possession of the properties, but refused to register them in the name of M., and subsequently ejected her from them. HELD (reversing the decision of the District Court) : That the plaintiffs were entitled to recover damages for the breach of the agreement. APPEAL from the District Court of Limassol. The action was brought claiming an order that the defendant should be ordered to register in the name of the plaintiff, Myrianthe, certain immovable properties, or to pay their value. The plaintiffs' claim was founded upon a written agreement by which the defendant undertook to transfer to his daughter, the plaintiff Myrianthe, certain immovable properties, the value of which was stated in the agreement, on the occasion of her marriage with the plaintiff Yanni Georghi. The defendant admitted making the agreement, and that he had entered into it with the view of inducing Yanni Georghi to marry his daughter, and that he had no intention of carrying it out, and contended that he was not bound to execute the agreement. He also admitted that he had put the plaintiffs in possession of the property and had since retaken possession of the greater part, and given them notice to abstain from interfering with the remainder. The plaintiff Yanni Georghi proved that he would not have married the defendant's daughter but for the fact of his having entered into this agreement. The District Court, the President dissenting, held that the agreement was a nullity, and that the plaintiffs were not entitled to recover. The plaintiffs appealed. Kyriakides, for the appellants, contended that the agreement was in itself valid, that there had admittedly been a breach of it, and that the plaintiffs were entitled to recover damages. The respondent did not appear and was unrepresented. Judgment: This is an action founded upon an agreement made by the defendant to give certain properties in consideration of the marriage of his daughter, the plaintiff Myrianthe, to the plaintiff, Yanni Georghi Koftero, which he has failed to carry out, so far as relates to certain immovable property mentioned in the writ of summons. The facts appear to be, that, in the year 1881, the defendant and his wife by a document of dower promised to give their daughter Myrianthe property movable and immovable of the value of 43,316 p. on the occasion of her marriage. It is alleged that this agreement was carried out by the defendant's wife and the defendant himself, except as regards certain immovable property of the value of 16,400 p. It is admitted by the defendant that he entered into this agreement to give his daughter the property in question, and he admits that he promised to give it in order to get his daughter married, intending to take it back directly after, and that, in fact, he never intended to give it. The plaintiff Yanni says, that the defendant agreed with him to give this dower to his daughter, and that he would not have married the defendant's daughter without this agreement: that the defendant showed him the properties in question, and that he took possession of them: but that two years after the marriage the defendant retook possession of some of the property, and from time to time has taken more, and before this action was brought, the defendant admits that he gave the plaintiffs notice not to interfere with any of the property he gave his daughter. This action was thereupon brought, in which the plaintiffs claimed: that the defendant should be ordered to cause the immovable properties he had promised to give to be registered in their names or to pay the value thereof: 2nd, that the defendant might be ordered to pay the balance of certain moneys, and the value of a mare he had promised to give by the document of dower: 3rd, damages for retaking possession of certain of the immovable property, and the costs of the action. With regard to the claim for money and the value of the mare, the District Court have found that the defendant did comply with his agreement, and the present appeal only concerns the immovable property. The District Court has found that the agreement with regard to this is bad, and that no damages can be recovered for the breach of it, and reference is made to a law in the Destour, Vol. I., p. 736, by Hakki Effendi, in support of this view. Taking into consideration the terms of the document of dower and the evidence given by the plaintiff and defendant, our view is that the defendant did agree with both the plaintiffs to give to the plaintiff Myrianthe the immovable property described in the document of dower in consideration that the plaintiff Yanni would marry her. On the faith of this agreement the marriage took place, and we see no reason why such an agreement should be invalid, or why the plaintiffs are not entitled to recover damages for its breach. The defendant admits that this agreement was entered into solely with the object of inducing the plaintiff Yanni to marry his daughter. The gift has never been legally completed by registration, and the defendant admits that he has either retaken possession of, or given the plaintiffs notice that they are no longer to interfere with the whole of the properties. We are, therefore, of opinion that he has committed a breach of agreement, for which the plaintiffs are entitled to damages. There is no gift of the property itself, as no registration in the name of the plaintiff Myrianthe has taken place: but there is clear evidence of an agreement to give Myrianthe certain property or its value in consideration of her marrying the plaintiff Yanni. She could not have done this without the defendant having entered into this agreement, as, Yanni says, he would not have married her without. The measure of damages appears to us to be the value placed by the defendant himself upon the property, viz.: 16,400 p. at the rate of 132 to the £. The defendant, of course, will be entitled to the possession of so much of the property as remains in the plaintiffs' hands. With regard to the law cited, it appears to us to be a law regulating the amount of expenses which can be validly incurred in connection with the marriage ceremony of persons in varying positions of life, and it also forbids gifts between husband and wife before marriage exceeding in value certain specified amounts. It does not, in terms, affect the validity of such a contract as the one in question before us, and we have grave doubts whether this law is one which is capable of enforcement, or ever has been enforced. With regard to the claim for interest, the plaintiffs have for years suffered the defendant to retain possession of some of the property which he took from them, and as to other portions of the property, there is no evidence as to when he deprived them of it, and he alleges that, although he has given them notice not to interfere with any of it, he has not actually retaken possession of all. Under these circumstances, we do not think that we should order the defendant to pay any interest, and our judgment will be that the judgment of the District Court be set aside, and that the defendant do pay to the plaintiffs the sum of 16,400 p. at the rate of 132 to the £ and the costs of this action. Appeal allowed. cylaw.org: Από το ΚΙΝOΠ/CyLii για τον Παγκύπριο Δικηγορικό Σύλλογο