Smith v Smith
| Jurisdiction | Cayman Islands |
| Judge | (Sanderson, Ag. J.) |
| Judgment Date | 07 April 2003 |
| Court | Grand Court (Cayman Islands) |
| Date | 07 April 2003 |
(Sanderson, Ag. J.)
P.A. Broadhurst and P.A.K. Broadhurst for the plaintiff;
W.J. Helfrecht for the defendant.
(1) Cook-Bodden v. Kirkconnell, 1992–93 CILR 89, distinguished.
(2) Ebanks v. Clarke, 1992–93 CILR 33, distinguished.
(3) Saunders v. Anglia Bldg. Socy., ELR[1971] A.C. 1104; [1970] 3 All E.R. 961, dicta of Lord Wilberforce applied.
(4) Smith v. Milbourne, Grand Ct., Plaint 19/73, unreported, dicta of Horsfall J. applied.
Land Adjudication Law (1997 Revision) (Law 20 of 1971, revised 1997), s.16(1): The relevant terms of this sub-section are set out at para. 37.
Public Recorder Law (1996 Revision) (Laws of the Cayman Islands, 1963, cap. 143, revised 1996), s.11: The relevant terms of this section are set out at para. 8.
Registered Land Law (1995 Revision) (Law 21 of 1971, revised 1995), s.24: The relevant terms of this section are set out at para. 38.
s.140(1): The relevant terms of this sub-section are set out at para. 36.
Land Law-quit claim-effect of quit claim-once properly registered, quit claim confers legal title and is irrefutable evidence of ownership of land
Land Law-registration-rectification-where first registration only with provisional title, rectification not limited to cases of fraud or mistake-pre-existing interests not affected by registration with provisional title
Documents-non est factum-conditions for applicability-defence only available where document signed essentially different, in substance or in kind, from that intended-mere evidence that signatory notorious drunk insufficient evidence of lack of intention
The plaintiff applied for rectification of the Land Register (the application being continued after his death by his administratrix, on behalf of his estate).
The land in question originally belonged to the parties” grandfather. On his death, the land passed to the defendant”s father, whose sister, acting without legal authority, gifted the land to the plaintiff”s father, who subsequently gifted it to him. In 1970, the then administrator of the defendant”s father”s estate signed a quit claim to the plaintiff, who registered it in the Public Records Office.
During the land adjudication process, the defendant, by then administrator of the estate, claimed the land on the basis of long possession, and it was registered with provisional title in his name. The plaintiff was not involved in those proceedings. In 1984, the parties signed a quit claim agreement, by which the plaintiff stated that he had no claim to the land and recognized the defendant as the true legal owner. The defendant promised to pay the plaintiff $3,000 and a further $30,000 after he vacated the land. The total amount actually received by the plaintiff was $525.
The plaintiff applied to be registered as proprietor with absolute title, and a restriction was placed on the land, pending resolution of the ownership issue. In 1996, the plaintiff commenced the present proceedings, seeking rectification of the Land Register.
The plaintiff submitted that (a) his aunt”s lack of legal authority to convey the land to his father was irrelevant, because the quit claim in 1970 (from the then administrator of the estate) ‘perfected’ the earlier gift; (b) once registered, a quit claim was capable of conferring legal title and he therefore acquired title to the land in 1970; (c) since the defendant was only registered as owner of the land with provisional title, the court had jurisdiction to rectify the Register to record the plaintiff as absolute owner, pursuant to the Registered Land Law (1995 Revision), s.24; (d) he signed the 1984 quit claim deed when drunk and unable to appreciate its significance and under the doctrine of non est factum, he should therefore not be bound by it; and (e) the 1984 agreement was not binding, since the defendant had not fulfilled his side of the agreement, as there was $32,475 outstanding.
The defendant submitted in reply that (a) a quit claim could not convey good title and the plaintiff therefore had no legal right to the land; (b) alternatively, quit claims were only effective if conventional conveyances were also presented to the Registrar of Lands, which the plaintiff had not done; (c) even if it were assumed that a quit claim was sufficient to transfer title, the plaintiff had not participated in the land adjudication process, and as the court”s power to rectify a first registration was limited to fraud or mistake after adjudication, the plaintiff”s application therefore failed; and (d) the 1984 agreement, signed in good faith, was binding on the plaintiff and operated to vest legal title in the defendant.
Held, dismissing the application:
(1) The quit claim in 1970 vested legal title to the land in the plaintiff. Once it had been properly registered, it was irrefutable evidence of the plaintiff”s ownership of the land, pursuant to s.11 of the Public Recorder Law (1996 Revision), releasing all right, title, interest or claim that the administrator had in the land (paras. 8–9).
(2) The 1984 quit claim agreement, transferring the plaintiff”s title to the defendant was enforceable, despite the plaintiff”s claim that he was drunk when he signed it. The defence of non est factum was only available where the transaction a document purported to effect was essentially different, in substance or in kind, from that intended. There was no evidence that the agreement which the plaintiff signed was essentially different from the one intended-nor, although he was a notorious drunk, was there any clear evidence that he was drunk at the time of signing the document, such that he could not be held responsible for it. Title to the land was thereby vested in the defendant (paras. 53–54; para. 57).
(3) The court had jurisdiction to rectify the register, pursuant to s.24 of the Registered Land Law (1995 Revision), despite the fact that it had already been registered with provisional title in the defendant”s name. Pre-existing rights or interests were not adversely affected by registration with provisional, as opposed to absolute, title. The circumstances
in which the court might rectify the register after a first registration were not therefore limited, as the defendant asserted, to cases in which fraud or mistake occurred after the registration (para. 39; para. 43).
(4) In order for the 1984 transaction to be completed, however, and absolute title vested in the defendant, he would have to pay to the plaintiff”s estate the promised amount of $33,000, less the $525 already received (para. 58).
1 SANDERSON, Ag. J.: This is a land dispute between cousins. The property in dispute was originally owned by their grandfather, Samuel Smith Snr., who died in 1927. He had three children: Samuel Smith Jnr., Alvey Smith Snr. and Clara Belle Smith. Samuel Smith Jnr., being the eldest, inherited all of the real estate by virtue of the primogeniture rules, leaving Alvey Smith Snr. and Clara Belle Smith without an inheritance.
2 It is not disputed that Samuel Smith Jnr.”s brother, Alvey Smith Snr., and his sister, Clara Belle Smith, continued living on the land with their mother. On March 4th, 1944, Samuel Smith Jnr. died intestate. He had three sons, Charles Smith, James Smith and Elery Smith. Under the previous primogeniture rules, the property would have passed to Charles Smith, his eldest son, but by 1944 he had to seek letters of administration, as the law had changed.
3 Charles Smith was granted letters of administration on April 25th, 1944. Some time thereafter he left the Islands. His...
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