Millwood v Brown
| Jurisdiction | Cayman Islands |
| Judge | (Murphy, J.) |
| Judgment Date | 07 December 1998 |
| Court | Grand Court (Cayman Islands) |
| Date | 07 December 1998 |
(Murphy, J.)
A.J. Taylor for the plaintiffs;
S.A. Brooks for the defendants.
(1) Abbey National Bldg. Socy. v. Cann, [1991] 1 A.C. 56; [1990] 1 All E.R. 1085, considered.
(2) Boyle”s Claim, In re, [1961] 1 W.L.R. 339; [1961] 1 All E.R. 620.
(3) Bridges v. Mees, [1957] Ch. 475; [1957] 2 All E.R. 577.
(4) Brunker v. Perpetual Trustee Co. Ltd.UNK(1937), 57 C.L.R. 555; 11 ALJ 108.
(5) Fry, In re, Chase National Executors & Trustees Corp. Ltd., [1946] Ch. 312; [1946] 2 All E.R. 106.[1946] Ch. 312; [1946] 2 All E.R. 106.
(6) Hodgson v. Marks, [1971] Ch. 892; [1971] 2 All E.R. 684.
(7) Hunt v. Luck, [1901] 1 Ch. 45; (1900), 70 L.J. Ch. 30; on appeal, [1902] 1 Ch. 428; [1900–03] All E.R. Rep. 295.
(8) Mascall v. Mascall(1984), 50 P. & C.R. 119; 81 L.S. Gaz. 2218, distinguished.
(9) Milroy v. LordENR(1862), 4 De G.F. & J. 264; 45 E.R. 1185, considered.
(10) Richards v. DelbridgeELR(1874), L.R. 18 Eq. 11, considered.
(11) Rose, In re, Rose v. Inland Rev. Commrs., [1952] Ch. 499; [1952] 1 All E.R. 1217, distinguished.
(12) Scoones v. Galvin, [1934] N.Z.L.R. 1004; [1934] G.L.R. 777.
(13) Strand Secs. Ltd. v. Caswell, [1965] Ch. 958; [1965] 1 All E.R. 820, applied.
(14) Ward, Re, Gillett v. Ward, [1968] W.A.R. 33; (1968), 42 ALJR 227.
(15) Williams & Glyn”s Bank Ltd. v. Boland, [1981] A.C. 487; [1980] 2 All E.R. 408, applied.
Grand Court Rules, O.113, r.1:
‘Where a person claims possession of land which he alleges is occupied solely by a person or persons (not being a tenant or tenants holding over after the termination of a tenancy) who entered into or remained in occupation without his licence or consent or that of any predecessor in title of his, the proceedings may be brought by originating summons in accordance with the provisions of this Order.’
Registered Land Law (1995 Revision) (Law 21 of 1971, revised 1995), s.28(g): The relevant terms of this paragraph are set out at page 350, lines 17–24.
s.100(1)(a): The relevant terms of this paragraph are set out at page 356, lines 21–22.
Land Law-overriding interests-elements-for purposes of Registered Land Law (1995 Revision), s.28(g), claimant to show legal or equitable right together with occupation-occupation effectively notice to purchaser of right-purchaser saved by proviso only if inquiries directed to holder of right, not vendor
Gifts-perfection of gift-gift of land-no power in equity to perfect incomplete gift unless donors have done everything in their power to do so-valid execution of transfer and delivery to donee for registration required
The plaintiffs applied for an order for possession of land of which they were the registered proprietors.
The first defendant”s mother and his elder sister were the joint proprietors of land. A transfer form was prepared to transfer it, giving a 20% share each to themselves and the first defendant and 40% to a younger daughter, to be held as proprietors in common. However, the first defendant did not sign the form and it was never registered. Shortly before her death, the mother allegedly executed a will leaving her 20% share to the first defendant and appointing her younger daughter as executrix. Only a copy of this document was available to the court, and the signature on it differed from that on the transfer form. The will was never submitted to probate, and at the time of the mother”s death the land remained registered in the joint names of the mother and her elder daughter.
The elder daughter resided in the property on the land until the first defendant and his wife, the second defendant, moved in without her permission and allegedly drove her out. She then sold the land to the plaintiffs, telling them that she had inherited it from her mother. The plaintiffs did not inspect the property but relied on an appraisal conducted on behalf of their bank. Whilst the appraiser knew that the first defendant was in occupation, the plaintiffs claimed not to have known this and alleged that the seller told them she herself had possession.
The defendants resisted the plaintiffs” action for possession of the land on the ground that they had an overriding interest under s.28(g) of the Registered Land Law (1995 Revision).
The plaintiffs submitted that (a) the first defendant had no equitable right in the land for the purposes of s.28(g), since (i) the partially-
executed transfer was not specifically enforceable by a person who had given no consideration, (ii) the court had no jurisdiction to perfect an incomplete gift in his favour unless satisfied that the donors had done all in their power to do so themselves, including obtaining all the donees” signatures, (iii) his mother had had no power as a joint proprietor to dispose of any part of the land in her will, and therefore (iv) it had passed to his sister upon their mother”s death by right of survivorship; and (b) under the proviso to s.28(g), no overriding interest could attach to the land, since the apparent occupier had failed to disclose the first defendant”s occupation in response to their inquiries.
The defendants submitted in reply that (a) the first defendant had acquired an equitable interest as a constructive trustee, since (i) his failure to sign the transfer form was the fault of his sisters, who had kept the document from him and, all the other intended parties having executed the form, the gift of a 20% equitable share in the land was complete, (ii) the transfer had severed the existing joint proprietorship of the land and his mother”s 20% interest had therefore formed part of her estate to be disposed of by the will which his sister had neglected to execute; and (b) the proviso to s.28(g) could not avail the plaintiffs, since they should have addressed their inquiries to them, as occupiers, rather than to the vendor.
Held, making an order for possession:
(1) The plaintiffs were entitled to possession of the land as registered proprietors, since the defendants had not shown any legal or equitable right in the land which, together with their undisputed occupation, could create an overriding interest under s.28(g) of the Registered Land Law (1995 Revision). As a volunteer who had made no contribution to the property and had not altered his position in reliance on acquiring a share in it, the first defendant had none of the characteristics of a constructive trustee and could not claim an estoppel. Nor was there any evidence of an express trust in the transfer form (page 350, lines 27–31; lines 37–44; page 351, line 38 – page 352, line 2).
(2) Since his mother and sister had not delivered the transfer form to him for execution and registration, they had not done everything possible to complete their gift to him of an interest in the land, and the court had no power in equity to perfect it. Delivery to some other person, such as one of the other donees, did not suffice, since their existence was purely fortuitous. The joint proprietors of land were required, at common law and under s.100(1)(a), to act together to dispose of it, and the evidence showed that whatever were his mother”s intentions, his sister did not wish to donate any part of the land to him (page 354, lines 35–43; page 355, line 5 – page 356, line 8).
(3) Since the transfer was inoperative, the existing joint proprietorship had not been severed, and the land had not formed part of the mother”s estate to be disposed of by will. Instead it had passed to the first
defendant”s sister as the surviving owner to dispose of as she saw fit. She had sold the property to the plaintiffs, who had acquired title to it free of any overriding interest (page 356, lines 11–23).
(4) Although mere occupation of the land was insufficient to acquire an overriding interest, if the first defendant had acquired a right in the land, his occupation would, in effect, have constituted notice to the plaintiffs of that right. The plaintiffs could not have pleaded that they had made sufficient inquiries to invoke the proviso to s.28(g), since those inquiries should have been made to the occupiers as holders of the rights, and not to the vendor (page 350, line 45 – page 351, line 24).
| 10 | MURPHY, J.: This is an application commenced on June 8th, 1998 by |
| originating summons for summary possession pursuant to the provisions | |
| of O.113. The plaintiffs are the registered proprietors of the property in | |
| question, George Town South, Block 14E, Parcel 192, known as No. 10, | |
| Windsor Park (‘the property’). The defendants are presently in | |
| 15 | possession and have been since late March or April 1998. |
| Graham, J. made an order for possession on July 16th, 1998. On | |
| August 17th, on the basis of additional affidavit evidence, he vacated his | |
| previous order and accepted, in lieu of granting an inhibition, an | |
| undertaking by the plaintiffs not to upset the status quo pending final | |
| 20 | determination of the matter. |
| It is unfortunate for all concerned that this unhappy situation has been | |
| allowed to continue unresolved until today. I proceeded today by way of | |
| trial of an issue. The main affidavit evidence was that of Noel Millwood | |
| and Craig Brown. There were several affidavits filed by other deponents | |
| 25 | but I found them of marginal relevance given the issues I must resolve. It |
| is fair to say that much of the affidavit evidence has fallen away as the | |
| legal issues have come into sharper focus. | |
| Noel Millwood, his father, Ashton Millwood, and Craig Brown were | |
| cross-examined before me upon their affidavits. While I found the viva | |
| 30 | voce evidence of Craig to be somewhat evasive at times, I am bound to |
| say that there are few significant issues involving credibility and, for that | |
| matter, few facts in dispute. There are a few areas where there are gaps, or | |
| the evidence did not |
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