Cook-Bodden v Kirkconnell

• Jurisdiction: Cayman Islands
• Judge: (Harre, C.J.)
• Judgment Date: 07 January 1994
• Court: Grand Court (Cayman Islands)
• Date: 07 January 1994

Grand Court

(Harre, C.J.)

COOK-BODDEN

and

M.I. KIRKCONNELL and M. KIRKCONNELL

E. Grant for the plaintiff;

P. Lamontagne, Q.C., for the defendants.

Cases cited:

(1) Assets Co. Ltd. v. Roihi, [1905] A.C. 176, applied.

(2) Duffield v. Duffield(1829), 1 Dow. & Cl. 268; 6 E.R. 525, distinguished.

(3) Frazer v. Walker, [1967] 1 A.C. 569; [1967] 1 All E.R. 649, dictum of Lord Wilberforce applied.

(4) Goodtitle d. Parker v. Baldwin, (1809), 11 East 488; 103 E.R. 1092; [1803–13] All E.R. Rep. 474.

(5) Greenhalgh v. Mallard, [1947] 2 All E.R. 255, dictum of Somervell, L.J. applied.

(6) Life Assn. of Scotland v. SiddallENR(1861), 3 De G.F. & J. 58; 45 E.R. 800.

(7) Over v. Harwood, [1900] 1 Q.B. 803, dictum of Channell J. applied.

(8) Selangor United Rubber Estates Ltd. v. Cradock (No. 3), [1968] 1 W.L.R. 1555; [1968] 2 All E.R. 1073.

(9) Yat Tung Inv. Co. Ltd. v. Dao Heng Bank Ltd., [1975] A.C. 581; (1975), 119 Sol. Jo. 273, applied.

Legislation construed:

Registered Land Law (Revised) (Law 21 of 1971, revised 1976), s.23:

‘. . . [T]he registration of any person as the proprietor with absolute title of a parcel shall vest in that person the absolute ownership of that parcel together with all rights and privileges belonging or appurtenant thereto, free from all other interests and claims whatsoever . . .

Provided that-

(i) nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which he is subject as a trustee.’

Act for the Government of the Cayman Islands 1863 (United Kingdom, 26 & 27 Vict., c.31), s.5: The relevant terms of this section are set out at page 43, lines 33–40.

Colonial Laws Validity Act 1865 (United Kingdom, 28 & 29 Vict., c.63), s.2:

‘Any colonial law which is or shall be in any respect repugnant to the provisions of any Act of Parliament extending to the colony to which such law may relate, or repugnant to any order or regulation made under authority of such Act of Parliament, or having in the colony the force and effect of such Act, shall be read subject to such Act, order or regulation, and shall, to the extent of such repugnancy, but not otherwise, be and remain absolutely void and inoperative.’

Act for the better preserving of the Records in the several Public Offices of this Island, supplying and remedying defects in several former Laws for preventing fraudulent Deeds and Conveyances and Recording Old

Wills in a prefixed time, 1731 (Jamaica, 4 Geo. II, c.5), ss. II, IV, V, VI: The relevant terms of these sections are set out at page 42, line 14 – page 43, line 20.

Act for the Registering of Deeds and Patents, 1681 (Jamaica, 33 Car. II, c.12), s.1: The relevant terms of this section are set out at page 41, line 40 – page 42, line 6).

Land Law-registration-interest under trust-burden of proving registered proprietor holds land as trustee on person invoking proviso to Registered Land Law (Revised), s.23-must establish own title and not merely show weaknesses in proprietor”s documentation before registration

Land Law-registration-failure to register-under Act for Registering Deeds and Patents, 1681, s.1 unregistered deed effective to pass title if accompanied by livery of seisin, attornment or other ceremony recognized by law-not repealed by 1731 statute and in force until incorporated in Cayman legislation up to Public Recorder Law (Revised)

The plaintiff, in his capacity as personal representative of the estates of deceased relatives, sought orders recognizing that the defendants held four parcels of land as trustees for those estates and that they had acted inconsistently with the trusts when they converted the trust property to their own use.

The lands in question originally formed part of the residue of the estate of Eden the Elder who died in 1880; it was devised and bequeathed in nine equal shares on trust for the benefit of his children and the children of his deceased son and daughter. One of his sons, Eden Senior, was the sole surviving trustee and executor named in the will. There was documentary evidence of the administration of the estate and of dealings by the beneficiaries in lands described as originating from the estate of Eden the Elder.

Those parts of the lands in dispute which were owned by Eden Senior passed variously by deed of gift and, after his death in 1909, under his will. Transactions purporting to be in furtherance of his will took place but his executor died in 1925 and administration was never completed.

Documentary evidence showed the devolution of the lands to the defendants” now deceased mother and under the land adjudication process, following 1971, the lands were adjudicated in favour of the estate of their mother which led to the defendants being registered as the first proprietors. During the adjudication process they also claimed certain lands for the estate of Eden Senior but had not sought substitution as personal representatives.

In 1979, the plaintiff was substituted as personal representative of the estate of Eden Senior and thus also became by succession the personal

representative of the estate of Eden the Elder. He now sought orders recognizing the beneficial ownership of the lands by the estates he represented.

The plaintiff submitted that (a) the lands in dispute were still owned by the estates of Eden the Elder or Eden Senior since the only documentary evidence available helped to suggest that they were never properly disposed of by the estates and the defendants were effectively just meddling; (b) the defendants were executors de son tort of the estate of Eden Senior since they had assumed the authority of executors and consequently they were liable for damages to the estate; (c) under the proviso to s.23 of the Registered Land Law (Revised) the defendants held the lands in dispute on trust either as (i) trustees de son tort, since while acting as personal representatives for the estate of Eden Senior they had failed to claim all the lands for the estate but had claimed the lands in dispute for the estate of their deceased mother and themselves; or (ii) constructive trustees, since during the adjudication process they had made representations that the lands belonged to their mother”s estate and themselves, intending that the adjudicator should rely upon them, when they knew or ought to have known that these representations were false; and therefore by virtue of the equitable principle of tracing they were obliged to transfer the lands back to the estate, account for any profit made and make good whatever loss had been suffered by the estate; and (d) the documents adduced by the defendants purporting to illustrate how title had passed to their mother were ineffective to transfer title as they were not registered within three months as required by s.1 of the Act for the Registering of Deeds and Patents, 1681, which had later been incorporated into the Public Recorder Law (Revised).

The defendants submitted in reply that (a) the assertion that they were executors de son tort was not in issue here as it could only be asserted in respect of the lands claimed by the defendants on behalf of the estate of Eden Senior, which were not in dispute; (b) under the proviso to s.23 of the Registered Land Law (Revised), the burden of proving that the defendants, as registered proprietors, held the land as trustees was on the plaintiff and he had failed to discharge this burden since he had merely attacked their title by demonstrating weaknesses in the documentation prior to registration, without establishing his own; (c) when they claimed the lands under the adjudication process, they were unaware of any interests other than their own and that of their mother”s estate; (d) the plaintiff was estopped from making claims in respect of two of the four parcels of land since the ownership of these lands had been in issue in earlier rectification proceedings (noted at 1990–91 CILR N–17; on appeal, reported at 1992–93 CILR 89), which had been decided in favour of the defendants; (e) the failure to register the deeds, adduced in evidence to show how title had passed to their mother, did not render the transfers ineffective under s.1 of the 1681 statute since it provided that unregistered deeds were still effective to pass title if accompanied by livery of seisin, attornment or any other act or ceremony recognized by the law and, as at

that time in the Cayman Islands title was based primarily on seisin, it was probable that livery by seisin had taken place; and (f) in any event, s.1 of the 1681 statute had been repealed by the 1731 statute (‘an Act for the better preserving of the Records in the several Public Offices of this Island, supplying and remedying defects in several former Laws for preventing fraudulent Deeds and Conveyances and Recording Old Wills in a prefixed time’) and it had never been incorporated into subsequent legislation.

Held, dismissing the suit:

(1) The assertion that the defendants were executors de son tort was not in issue, since it could only be asserted in respect of the lands claimed by the defendants on behalf of the estate of Eden Senior and these lands were not in dispute here (page 37, lines 20–29).

(2) The court was satisfied that the disputed lands were no longer subject to trusts arising under the estates of Eden the Elder or Eden Senior. Under the proviso to s.23 of the Registered Land Law (Revised) the burden of proving that a registered proprietor held the land as a trustee was on the person trying to invoke its provisions and the plaintiff had failed to satisfy the burden. He had merely attacked the defendants” title by illustrating weaknesses in the documentation prior to registration but had been unable to establish any title of his own. The defendants” title had been vested by registration and to attempt to go behind it would be to deny the security of title guaranteed under the registration system (page 36, line 6 –...