Smellie CJ
IN CHAMBERS
IN THE GRAND COURT OF THE CAYMAN ISLANDS
CAUSE NO:
BETWEEN: JUNE SMITH
(As administratix of the Estate of Alvey Smith (deceased))
PLAINTIFF
AND: ELLERY SMITH
(As Administrator of the Estate of Samuel Smith Jr. (deceased))
DEFENDANT
Appearances:
Mr. Peter Broadhurst of Broadhurst & DaCosta for the plaintiff
Mr. William Helfretch of Boxalls for the defendant.
Before Chief Justice Anthony Smellie
DECISION
The plaintiff is the first administrator of the estate of Alvey Smith Jr. who died on the 28th February 1999.
Alvey Smith Jr. was a son of Alvey Smith Sr. and a grandson of Samuel and Iolia Smith, all deceased. Samuel Smith, under whose estate certain lands (including the land in dispute) devolved, died intestate in 1927.
The defendant Ellery Smith, is the third administrator of the estate of Samuel Smith Jr. (deceased), the eldest son of Samuel and Iolia Smith. Samuel Smith Jr. was brother to Alvey Smith Sr. The defendant succeeded as the third administrator of the estate of Samuel Smith Jr.; Charles and James Smith, in turn.
As administrators of their respective estates, the present plaintiff and defendant are therefore pursuing competing claims to what was, essentially, “family land”.
Mr. Helfretch brings this application on behalf of the defendant to strike out the plaintiff’s action on the grounds of inordinate and inexcusable delay and want of prosecution.
As he submits though, and as I am for present purposes persuaded - this being an action for the enforcement of an equitable claim to land - the plea in bar upon which he really relies is the equitable doctrine of laches, as no statutory limitation period applies to the action. The basic principle is that a claim in equity will not be subject to any statutory limitation period where the plaintiff claiming can show a trust as existing because he has paid all that was due in respect of the property and that the defendant is excluded from all benefit: Halsbury’s 4th Edition (reissue) volume 28 paragraphs 806 and 921 and The Limitation Law 1991, sections 24 and 27. In the prayer to the Statement of Claim filed on 21st January 1997, the plaintiff seeks in effect a declaration that Alvey Smith Jr. was the equitable owner of the land in dispute (George Town Central, Block 14 BG, Parcel 80) and consequential orders rectifying the proprietorship section of the Land Register.
The land is registered by way of provisional title in the name of the defendant (as administrator of the estate of Samuel Smith Jr.).
While there is a history, which suggests a common law root of title going back to the original proprietor Samuel Smith, who died interstate in 1927 and who was the grandfather of both the plaintiff and defendant; the plaintiff claims to have bought the land and obtained a quitclaim from the administrator (of the defendant estate) who was then James
Smith, in 1970. This is the basis of the equitable claim and will be more fully described below.
Alvey Jr., it is common ground, had also been continually in actual possession of the land since at least 1958 when he built his house on it. At that time Alvey Smith Jr. relied upon a Deed of Gift of the land which is also more fully explained below.
An obstacle the plaintiff faces is that the equitable nature of his claim and actual possession notwithstanding, he had taken no steps prior to this action, to secure that that claim became clothed in legal title. This was notwithstanding the cadastral survey and legal registration process which was undertaken for the entire country in the 1970s.
This is however, not an insuperable obstacle. Where a plaintiff has both an equitable title and actual possession of the land, his prolonged failure to get in the legal title will not normally be treated as laches barring his claim: Joyce v Joyce [1978] 1 W.L.R. 1170 at 1174.
As already noted, in contrast to the plaintiff’s equitable claim, the defendant has the registered legal proprietorship with provisional title to the land in dispute.
His title has been registered only provisionally because at the time of claiming under the cadastral process in 1974, he presented no documentary proof. Since then, on 16th February 1988, the plaintiff succeeded in having placed a restriction on the register.
The defendant argues that at least since 1988 when the restriction was placed, the plaintiff was obliged to have the matter resolved by a declaration of the Court. No steps were however, taken to do so until January 1996 when this action, as originally filed by Originating Summons, was brought.
Against that background, the defendant’s most telling ground of complaint is that the plaintiff Alvey Smith Jr. has since died on the 28th February 1999 and the matter can therefore no longer be tried without prejudice to his case.
Up until the death of Alvey Jr., 3 years had passed since the defendant issued these proceedings and a period of 20 months immediately preceding when no step at all in the action was taken.
Mr. Helfretch also emphasized the fact-sensitive nature of the case: The plaintiff’s claim is largely based upon the assertion that he had paid for the land and had obtained the quitclaim in return. This is notwithstanding that prior to then, for some 30 years, Alvey Smith Jr. had been in actual possession and had earlier claimed to have obtained through his father Alvey Smith, a conveyance of the land by the Deed of Gift. This Deed of Gift was issued ostensibly on behalf of Samuel Smith’s estate (his grandfather’s) to his father, by a sister of his father’s and daughter of Samuel Smith.
It is said that as she was not the first child of Samuel Smith at a time when the rules of succession followed primogeniture, that Samuel Smith Jr. as the first born son, had entirely succeeded to title and that hers had failed. Moreover, that her title was rejected in a decision by this Court after trial of that issue. This was in an order of Court which cannot now be located from the records of the Court and in which the Court is said to have also ordered that Alvey Jr. and a sister of his (Coreen - who had been similarly in possession of another parcel from their grandfather’s estate), must pay the estate of Samuel Jr. (as the real successor in title) for their parcels of land.
The plaintiff claims that Alvey Jr. made his payments as ordered.
It is said that Coreen also paid and obtained a quitclaim backed by a receipt which resulted in legal title being registered to her in the cadastral process, in respect of the land she bought. Payments were made to Charles who was the administrator of the estate of Samuel Jr. and later (after Charles died) to James.
Now that Alvey Smith Jr. has died, Mr. Helfretch says the defendant will be irredeemably prejudiced in not being able to cross-examine him about the factual circumstances of his alleged payment for the land said to have resulted in the issuance to him of the quitclaim by James in 1970.
This being an equitable claim and therefore subject to the bar of laches, Mr. Helfretch says I should also be concerned with whether it will be possible for the Court to do justice between the parties.
Mr. Broadhurst, on the other hand, points to the fact that the sister Coreen is still alive; well and able to testify about the relevant factual circumstances: Like herself, she will say Alvey Jr. had obtained the quitclaim having paid for the land. That she was present when he made the last payment and was privy to the circumstances under which James issued the quitclaim, which was, moreover, later registered under the Public Records Law in favour of Alvey Jr.
While fraud has not been specifically pleaded, it is clear that when the defendant Ellery (in his capacity then and now as administrator) moved under the cadastral process to obtain provisional title in 1970, he was aware of the fact that Alvey Smith Jr. was, and had for many years been, in possession and had built a house on the land. He must also have been aware of the quitclaim – or so it is to be urged to be inferred - which had been issued by his predecessor in title, James, to Alvey Smith Jr.
Upon this application I am ultimately required to decide what is just.
This is not withstanding that I can be guided by the common law rules which apply upon an application of this kind and as developed in Allen v Mc Alpine & Sons [1968] 1. All. ER. 543; Birkett v James [1977] 2 All. ER. 801 and cases decided since then; including Williams v Bob Soto's Diving 1992 - 93 CILR 318, in this Court. While on the facts there may be a prima facie showing of unreasonable delay, I do not conclude, as is the test, that in all the circumstances the consequences of the delay must render the grant of relief to the plaintiff unjust. See for example Verrall v Great Yarmouth Borough Council [1981] Q.B. 202 at 205.
In deciding what is just, the conduct of the defendant when he obtained provisional title is a factor that also weighs heavily against the defendant's application to strike out the action.
While those facts too remain to be tried, it appears he failed to disclose what he knew of the plaintiff's claim.
While it is true that the process under the Land Adjudication Law which followed cadastral and registration under the Registered Land Law were intended to bring certainty and finality to the registration of titles to land, those Laws should not be construed in such a way as to condone a fraud upon the adjudication process itself and so provisional (or even absolute) title so obtained would be open to review and the register subject to rectification and no statutory limitation period would apply. See Ebanks v Clarke 1992-93 CILR 33.
As a defence to the bar of laches (assuming that the burden is on the plaintiff to show that the action should not be barred) it appears that she may not need to show that the
defendant's conduct amounted to fraud, "any unconscionable failure to reveal is enough".
See Tito v Waddell (No. 2) [1977] Ch. 106, at 24 et. seq.
The matter is further complicated by the existence of a document which purports to be an agreement dated 14th June 1984 in which Alvey Smith Jr. acknowledged that Ellery Smith was the undisputed legal owner of the land and that whereas he Alvey Jr. "has encroached on the land by building a house thereon without the owner's consent, now agrees that he has no claim to the land and will vacate the land within 20 days of receiving notice" from Ellery requiring him to do so.
Neither Alvey Jr. (in his affidavit sworn while he was alive) nor his witness Dell Seymour, recall signing any such document, due to being drunk at the time when they believe it must have been presented by Ellery. It seems Alvey Jr. was a notorious drunk.
Finally, I note that in February 1988, when the restriction was placed on the register, neither side moved to have the matter resolved by the Court until after January 1995, when Ellery attempted to sell the land giving rise to the present action being then instituted by Alvey Jr.
I conclude that this action is still amenable to being tried without the prejudice of which Mr. Helfretch complains.
The position on both sides is largely to be supported by reference to documents which are registered either under the Public Records Law, The Adjudication Law 1971 or The Registered Land Law and a witness as to the crucial events surrounding the issuance of the quitclaim, Coreen Smith, is still available to testify.
I conclude that it would be unjust to strike out the plaintiff's claim and direct instead that the Statement of Claim and Defence and Counterclaim be set down for trial at the earliest
available date. Directions must now also be given for the final steps to be taken before trial.
Anthony Smellie
Chief Justice
Dated this 3rd day of March 2002