Cook-Bodden v M.I. Kirkconnell et Al
| Jurisdiction | Cayman Islands |
| Judge | Harre, C.J. |
| Judgment Date | 07 January 1994 |
| Court | Grand Court (Cayman Islands) |
| Date | 07 January 1994 |
Harre, J.
Grand Court
Real property - Registration — Unregistered deed — Whether unregistered deed effective to pass title in land — Whether registered proprietor held land as trustee — Registered Land Law (Revised), s. 23.
(1) Assets Co. Ltd. v. Roihi, [1905] A.C. 176, applied.
(2) Duffield v. Duffield (1829), 1 Dow. & CI. 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. Siddall (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.
E. Grant for the plaintiff.
P. Lamontagne, Q.C., for the defendants.
This is a dispute over ownership of four parcels of land in Little Cayman. They are Block 82A, Parcels 2, 7 and 16 and Block 80A, Parcel 87. I shall refer to Parcels 7 and 16 collectively as “the Jacksons lands.” Parcels 2 and 87 are situated at Bloody Bay and I shall call them “the Bloody Bay lands.” For references to individual parcels I shall use the parcel numbers only except when I am referring to land other than the Jacksons or Bloody Bay lands.
Many of the facts in this case are not in dispute but they need to be set out at some length if the legal issues arising from them are to be understood. In doing so I have been greatly assisted by the written submissions made by counsel on both sides, from which I shall be drawing extensively.
William Eden died in 1880. He was a prominent person who owned large tracts of land in the Cayman Islands and elsewhere. He had a son of the same name who died in 1909. I shall refer to the father as “Eden the Elder” and the son as “Eden Senior” as has been done throughout this case.
The plaintiff, who is the personal representative of the estate of Eden Senior and who is said to be by succession the personal representative of the estate of Eden the Elder, bases his claim on the following two grounds:
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(a) The defendants are executors de son tort of the estate of Eden Senior and are liable for damages to the estate.
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(b) The defendants are trustees de son tort or constructive trustees of Parcels 2, 7, 16 and 87 of which they are the registered owners.
Consequently, on the equitable principle of tracing, they must transfer the lands back to the estate and account for any profit they have made from the lands and pay whatever damages the estate has suffered.
The registered proprietors of Parcels 2, 7 and 87 are the defendants and Parcel 16 is registered in the name of the first defendant as administrator of the estate of Alvernie Kirkconnell, deceased, the defendants' mother. Alvernie Kirkconnell was a daughter of Eden Senior.
Eden the Elder left seven surviving children. He devised and bequeathed the residue of his estate-including his lands in Little Cayman-to trustees for the benefit of these children and the children of his deceased son and daughter. There were thus nine shares of that residue and the trustees were directed either to sell it and divide the proceeds between the beneficiaries or distribute it in specie “unto the shares hereinbefore bequeathed and so that as fair a division as practicable may take place with the least possible expense.” It is common ground that the residue of the estate of Eden the Elder including the four disputed parcels became “trust property” on his death in 1880.
Eden Senior was one of the trustees and executors named in the will of Eden the Elder and in a conveyance dated April 19th, 1904 he is described as “sole surviving trustee and executor.” That conveyance is evidence of administration of the estate of Eden the Elder and there is other documentary evidence on the basis of which the defendants claim that at least some of the property of that estate went to some of the beneficiaries under his will in specie and deny that Eden Senior was possessed of all the land which Eden the Elder owned in Little Cayman after the latter's death. In 1904 Eden Senior acting in his personal capacity executed a deed of conveyance of land which he described as “the rest, residue and remainder of my one-ninth portion” of certain lands “being my portion of my father's estate.” In 1905, Antoinette Marie McTaggart, a daughter of Eden the Elder, acting for herself and on behalf of three of her sisters, conveyed land “being a part of the estate of her deceased father William Eden.” Also in 1905, Ann Victoria Orrett sold land described as “being the one-ninth portion and my full share of the estate known as ‘Charles Sound’ in Little Cayman” and Julia Catherine Hitchins, the plaintiff's grandmother, conveyed in 1905 her portion of the same land. In 1909 William Mearns Coe sold “the two-ninths and one-tenth of another ninth share” of land in Little Cayman described as “being portions purchased from the legatees of the estate of William Eden deceased.” All those dealings were in shares of land described as originating from the estate of Eden the Elder who by his will had divided the residue of his estate into nine equal shares, though they purport to deal with only some of the lands which formed part of the estate of Eden the Elder in 1880.
The defendants acknowledge that Eden Senior did hold property in Little Cayman which had been owned by his father during his lifetime but say that his land holding there appears to have been limited to the Jacksons and Bloody Bay areas and further limited to a one-third interest in land at Bloody Bay, a “portion of the coconut walk,” a “one-third portion of the house” and the “backland,” and other land with coconut trees at Jacksons by reason of evidence which I shall now describe. Whether proper title to those lands ever passed from Eden the Elder to Eden Senior, however, is a matter in dispute between the parties, as indeed is the question as to whether any lands were properly transferred from the estate of Eden the Elder to anyone.
By a deed of gift dated June 18th, 1904 Eden Senior gave, among other property (a) “my one-third portion of the cultivated land at Bloody Bay, Little Cayman owned with the late John S. Wood” to his second wife, his sons Charles and Salisbury Eden and four daughters; and (b) “my one third portion of the said uncultivated lands at Bloody Bay” to three sons and one daughter.
In his will, Eden Senior confirmed the deed of gift and left certain real estate in trust for one year after his death, including “my portion of the coconut walk at Jacksons, Little Cayman, from the sea to the cliff.” Other gifts under the will included “25 coconut trees at Jacksons, Little Cayman and the land they are growing on; a one-third portion of the house at Jacksons; the backland at Jacksons.”
I think that it is strained to describe the assertions of ownership by Eden Senior in this and other documents as “admissions” which are admissible on that ground as evidence to prove title and that the plaintiff is bound by these “admissions” because he is a privy in law as personal representative to a testator. But they are among the many acts of ownership and dealing which I take into account in determining the applicability of any presumption relating to the issue whether the defendants are trustees.
Probate of the will of Eden Senior was granted to Charles Eden, who died in 1925. There is evidence that before that event, transactions purporting to be in furtherance of the provisions of the will took place but it is common ground that the administration of the estate was never completed. At the time of the adjudication process provided for in The Land Adjudication Law, 1971 the defendants claimed parcels for that estate. These were not the lands now in dispute. In 1979 the plaintiff sought and obtained his substitution for Charles Eden as personal representative on the ground, inter alia, that Charles Eden had not completed the administration. He has begun the present action as personal representative of the estate.
I now continue the history of the parcels in dispute. In making reference to the deed of gift and other instruments, I am leaving until later consideration of the plaintiff's claim that most if not all of them did not have the effect of transferring any property to the intended transferees because they were allegedly not duly recorded.
In 1911 Eden Senior's son Salisbury purported to convey land at the east side of Bloody Bay to Moses Kirkconnell, the defendants' father. Another document describes the land to the east thereof as being owned by Eden Senior's son, John Lytton Eden, and the land to the west thereof as being owned by his daughter Edena Bodden. I accept that the land conveyed to Moses Kirkconnell is part of Parcel 2. Moreover, in or about 1945 John Lytton Eden purported to sell backland at the west side of Bloody Bay to Alvernie Kirkconnell, the defendant's mother, part of which is now Parcel 87. Salisbury Eden, John Lytton Eden and Edena Bodden were donees of lands at Bloody Bay under the deed of gift.
There is evidence in the form of a receipt that another part of the land which became Parcel 2 was sold to Alvernie Kirkconnell by Limeon A. Banks, acting as representative of the estate of A. Ebanks, deceased, on May 9th, 1954. The land continued to be cultivated as a whole for the benefit of Alvernie Kirkconnell, the defendants' mother.
All that is the basis of the second defendant's evidence that neither his mother nor any other...
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