Cuthbert Anderson Plaintiff v Alexander Jack Defendant [ECSC]
| Jurisdiction | St Vincent and the Grenadines |
| Judge | Mitchell, J |
| Judgment Date | 31 May 2000 |
| Judgment citation (vLex) | [2000] ECSC J0531-8 |
| Court | High Court (Saint Vincent) |
| Date | 31 May 2000 |
| Docket Number | CIVIL SUIT NO.247 OF 1996 |
IN THE HIGH COURT OF JUSTICE
CIVIL SUIT NO.247 OF 1996
This was a family dispute over land situate in the village of Layou in the State of St Vincent and the Grenadines.
The Pleadings: The case began with a specially endorsed writ issued in June 1996 in which the Plaintiff claimed that he owned a parcel of land with a house on it at Layou. He had a deed for it dated 5 September 1987. The Defendant was a tenant of the house. He had been given a notice to quit, but did not vacate. In June 1996 the house was partially destroyed by fire, and when the Plaintiff sent workmen to repair the building the Defendant obstructed them. The Plaintiff claimed the reliefs of possession, an injunction restraining the Defendant, and damages.
By his Defence and Counterclaim filed on 1 August 1996, the Defendant raised several defences. The substance of the defence was that the property formed a part of the estate of Jane Fraser, the grandmother of the Plaintiff. She had died on 16 October 1954. She left a will, which disposed of the property in dispute. That will had been probated on 6 February 1956. In the will she left the property to her daughters Violet Fraser and Dorothy Fraser. After the death of Jane Fraser, Dorothy Fraser had exercised all rights of ownership over it. Dorothy Fraser had been the mother of the Plaintiff. Dorothy Fraser had died on 3 July 1985 leaving Violet Fraser as the sole surviving joint owner. The Defendant was in possession with the consent of Violet Fraser. Further or alternatively, the deed of the Plaintiff was not the deed of Conrad Fraser the Executor. Further or alternatively, the Plaintiff is estopped from alleging he had purchased the property because in his letter to the Defendant he had claimed that the property was a gift to him. Further or alternatively, the Limitation Act had extinguished the title of the Plaintiff. Further or alternatively, the Plaintiff's claim had been barred by laches and/or acquiescence as the Defendant had been allowed to carry on business in the premises and to carry out repairs to it and to believe that the Plaintiff would not claim the property. Further or alternatively, the Plaintiff's deed had been fraudulently procured. The deed stated that it had been made to pay the debts, estate and succession duties, but these had amounted to only $69.63, and had been paid since 3 February 1956. The Plaintiff had known that the property belonged jointly to Dorothy Fraser and Violet Fraser. The relief the Defendant sought was a declaration that the Plaintiff's deed was null and void, an injunction to restrain the Plaintiff, and damages.
In his Reply and Defence to Counterclaim filed on 19 June 1998, the Plaintiff pleaded that he and his predecessors in title had been in adverse possession for over 12 years and any right which the Defendant and the person from whom he claimed had been extinguished under the Limitation Act. After the death of Dorothy Fraser on 3 July 1985, Violet Fraser had no interest in the property and could not give the Defendant consent to occupy it.
The Trial: The case came up for trial on 8 May 2000. The court heard evidence from the Plaintiff, a retired man of Layou who resides in Virginia in the USA. Giving evidence for the Defendant were the Defendant himself, Juanita Nesbitt his sister, Len Grant the clerk to his solicitor, and his cousin Rosemary Venkatra. At the close of the case, addresses were adjourned for a week. Counsel prepared written submissions on the law and the evidence together with photocopies of all the authorities on the many legal issues that arose in this case. I must express my gratitude for the thorough research and presentation made by both counsel.
The Facts: Not many of the facts are in dispute. The facts as I find them are as follows. Jane Fraser owned the disputed parcel of land and house until her death in 1954. The Plaintiff and the Defendant are cousins and are both lineal descendents of Jane Fraser. On 6 February 1956 Conrad Verbin Fraser the Executor obtained a grant of probate to the will of Jane Fraser. By her last will, Jane Fraser devised the disputed property to her two daughters, Violet Fraser and Dorothy Fraser. No deed of assent in their favour was ever executed. Violet Fraser was at the time of the making of the will of her mother Jane Fraser living in the USA, where she still lives now 81 years old and ill. She was unable to come to St Vincent to give evidence in this dispute. After the death of Jane Fraser in 1954, only Dorothy Fraser exercised acts of possession over the property. She permitted members of her extended family to occupy the house with her. Both the Plaintiff and the Defendant as boys lived in the disputed property around the time of the death of their grandmother Jane Fraser in 1954. The Plaintiff migrated to the UK in 1962 and returned to St Vincent in 1972. His mother permitted him to occupy the disputed property with his wife and family. He and his wife moved to the USA and vacated the house in 1979. The Defendant was born on the disputed property in 1947. He lived there with his extended family until about the age of 12 when he came to Kingstown to live with his aunt Dorothy Fraser. He did not go back to live on the disputed property until his aunt Dorothy Fraser permitted him to live there in about 1980. After Dorothy Fraser left Layou to live in Kingstown she left members of the family living in the disputed property. When they all moved away from Layou, she rented out the property to one Tony Young who lived in the top and used the ground floor as a shop. After he left, around the year 1980, she permitted the Defendant to occupy the property after he returned from abroad. The Defendant occupied upstairs and ran a shop downstairs. It was suggested that the Defendant paid Dorothy Fraser rent as Tony Young had done. The Defendant denied he paid rent, and there was no acceptable evidence of his having paid rent. After Dorothy Fraser's death in 1985, the Plaintiff approached the Executor, Conrad Verbin Fraser, then resident in New York, and obtained a Deed of Conveyance to the disputed property. The Plaintiff and his sister, Joan Anderson now deceased, were the only heirs of Dorothy Fraser. The Plaintiff did not take out Letters of Administration to her estate and claim the disputed property as part of her estate. The evidence is that no personal representative to the estate of Dorothy Fraser has as yet been appointed. The Plaintiff went instead to the Executor and obtained from him a deed of conveyance to the disputed property. The other devisee, Violet Fraser, was still alive and living in New York at the time of the deed of conveyance from the Executor to the Plaintiff. The deed recites that the Plaintiff had paid the Executor the sum of $9,587.00 in 1964 to permit the Executor to discharge estate debts. The Plaintiff admitted in cross—examination that he had not paid any money to the Executor or to the estate for the purchase of the property, and the recital of payment in his deed is not correct. On 6 January 1986 the Plaintiff wrote a letter to the Defendant informing him that he now had the title to the property and demanding rent from the Defendant. The Defendant did not pay rent, but, instead, approached his aunt Violet Fraser in New York and by a document in evidence dated 21 April 1986 obtained her written permission to stay in the property. After various lawyers' letters and abortive lawsuits, the result was this suit, the writ in which was issued on 25 June 1996.
There are a few facts in dispute. One important one is the signing by the Executor of the Plaintiff's deed. The Defendant denied that the Executor had ever executed the Plaintiff's deed. If he had, the Plaintiff claims it had been fraudulentlyobtained. The Plaintiff admitted in cross-examination that the deed was a voluntary conveyance. No question of it being a conveyance for value without notice arose. Rosemary Venkatra gave evidence to show the deed was a forgery. The deed says it was "signed sealed and delivered" by Conrad Verbin Fraser on 5 September 1987. The death certificate shows Conrad Verbin Fraser died in New York at the age of 79 on 6 June 1987. So, he could not have signed the deed on 5 September 1987. Of course, it may just have been carelessness that caused the solicitor preparing the deed for registration to complete the date of the deed as 5 September, especially as 5 September 1987 is the date of the execution by the witness of the Declaration of Attesting Witness before the Notary in New York. The place on the Declaration for the attesting witness to insert the date of the signing of the deed of conveyance has been left uncompleted. More seriously, Rosemary Venkatra gave evidence that I accept that from the date of the failing of the health of her uncle Conrad in New York in the early 1980s, she managed his affairs. She had been born in the disputed house and had lived there with the extended family until she moved to Kingstown with her aunt Dorothy Fraser at the age of about 11. Conrad Verbin Fraser himself had lived there until he also moved to New York. Rosemary Venkatra's mother is the now 81-year-old Victoria Fraser who has lived in New York from before the date of the will of Jane Fraser. Rosemary Venkatra produced evidence that she deposited for Conrad Verbin Fraser his social security cheques. She produced several documents signed by Conrad in the years before 1987, but none to show his signature in that year. There was no expert testimony on the variations in the signature of Conrad on the disputed deed and his other undisputed signatures. I could not help observing that the signature on the disputed deed has clearly been gone over in the three letters "rad" in "Conrad." Also, the letters "F" in Fraser and...
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