Conolly v Rankine

• Jurisdiction: Cayman Islands
• Judge: (Douglas, Ag. J.)
• Judgment Date: 06 March 1998
• Court: Grand Court (Cayman Islands)
• Date: 06 March 1998

Grand Court

(Douglas, Ag. J.)

R. CONOLLY (as Personal Representative of the Estate of A. McF. CONOLLY, deceased)

and

RANKINE

P. Lamontagne, Q.C. and Mrs. G.E. Nervik for the plaintiff;

N.W. Hill, Q.C. and A.S. McField for the defendant.

Cases cited:

(1) -Frazer v. Walker, [1967] 1 A.C. 569; [1967] 1 All E.R. 649, applied.

(2) -Juneau v. Gynell, 1984–85 CILR 1, dicta of Summerfield, C.J. applied.

Legislation construed:

Registered Land Law (1995 Revision) (Law 21 of 1971, revised 1995), s.23: The relevant terms of this section are set out at page 138, lines 20–24

s.140(1): The relevant terms of this sub-section are set out at page 137, lines 35–36.

(2): The relevant terms of this sub-section are set out at page 139, lines 30–36.

Land Law-transfers-formalities-transfer by personal representative-transfer, mistakenly using Form RL7, to person not entitled under will may pass valid title-no rectification of register under Registered Land Law (1995 Revision), s.140(1) for mistake of law

The plaintiff applied for a declaration that a transfer of land to the defendant was invalid and for rectification of the Land Register.

The owner of the land left it by will to his wife absolutely, with the proviso that if she disposed of it it should be passed to a male descendant. A codicil expressed the wish that the land pass to his son and two unmarried daughters after his wife”s death. The testator”s other children were to be entitled to the residue of the estate. The will and codicil were not submitted for probate.

Some years later, the deceased”s only surviving daughter obtained letters of administration with will annexed in order to provide for herself and her mother. Her brother, the only surviving executor named in the will, was overseas and uncontactable, but later wrote, giving his sister permission to sell the land.

The defendant, a family member, made payments to the deceased”s daughter and son named in the codicil over a number of years and the land was transferred to him after their mother”s death by a form of transfer (RL7) for use between a personal representative and a person entitled under a will. His name was entered on the Land Register as proprietor. He renovated the property and rented it out.

The plaintiff was later appointed as personal representative of the deceased”s estate and challenged the transfer of the land to the defendant as invalid.

He submitted that (a) the grant of letters of administration to the deceased”s daughter was invalid; (b) the land belonged to the residue of the deceased”s estate, since it had not been specifically disposed of under the will and was therefore beneficially owned by the deceased”s surviving sons as well as his daughter; (c) the form of transfer used rendered the transfer to the defendant void for mistake, since the defendant was not a person entitled under the will; (d) furthermore, the transfer was affected by fraud, since the defendant had been aware that he was not so entitled at the time, and therefore at best he held the land on trust for the estate; and (e) rectification of the Register was warranted under s.140(1) of the Registered Land Law (1995 Revision).

The defendant submitted in reply that (a) since a grant of letters of administration with will annexed bestowed on the recipient all the powers and privileges of any personal representative, the grant could not be challenged; (b) since the deceased had expressly left the land to his widow and had requested that it pass to his son and daughters after her death, it did not form part of his estate when it was transferred to the defendant; (c) as a bona fide purchaser for value who had acquired registered title to the land, he was protected by equity and by s.23 of the Registered Land Law (1995 revision), and the form of transfer used was irrelevant; and (d) in any event, under s.140(2), in the absence of fraud or mistake, rectification of the Register was not available to the plaintiff because the defendant was in receipt of rents and had acquired the land for valuable consideration.

Held, dismissing the applications:

(1) The land did not form part of the residue of the deceased”s estate at the time the defendant had purchased it. The deceased”s daughter had had power to dispose of it, since the grant of letters of administration with will annexed had bestowed on her all the powers of a personal representative. She had clearly acted in the belief that she was complying with the terms of her father”s will and, by using a form of transfer (RL7) appropriate for transfer to a person entitled under the will, had been unaware that only a person specifically named in a will could receive property in that way. The plaintiff could not obtain rectification of the register under s.140(1) of the Registered Land Law (1995 Revision) on the basis of this mistake as to the law. In any event, in these circumstances, the transfer and subsequent registration bestowed on the defendant the status of a bona fide purchaser for value without notice of any prior interest and his title was indefeasible under s.23 of the Law (page 136, lines 39–45; page 137, line 39 – page 138, line 5; page 138, line 14 – page 139, line 9; page 139, lines 37–45; page 140, lines 23–28).

(2) Moreover, since the defendant was a proprietor in receipt of rents or profits, having renovated the property and let it out, and since he had had no knowledge of the mistake for which the plaintiff sought rectification of the register, he was protected by s.140(2) of the Law (page 139, lines 25–36).

DOUGLAS, Ag. J.: This action comes before the court by way of an
10	originating summons in which the plaintiff seeks the following declara-
tion and orders:
‘(1) A declaration that the transfer of the land described as
Registration Section East End, Block 76B, Parcel 2 (“the land”) by
Aurelia E. Conolly, as personal representative of the estate of the
15	late Anthony McField Conolly, deceased, to the defendant on
August 30th, 1983, which was registered on January 10th, 1984, is
void and of no effect.
(2) An order that the Land Register be rectified by:
(a) -directing the cancellation of entry No. 2 in the pro-
20	prietorship section thereof; and
(b) -substituting therefor the following entry: “Rayburn

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