Wood v Wood

• Jurisdiction: Cayman Islands
• Judge: (Zacca, P., Kerr and Carberry, JJ.A.)
• Judgment Date: 29 November 1982
• Court: Court of Appeal (Cayman Islands)
• Date: 29 November 1982

Court of Appeal

(Zacca, P., Kerr and Carberry, JJ.A.)

K. WOOD

and

D. WOOD and V. WOOD

C. Rattray, Q.C. and W.W. Conolly for the appellant;

R.D. Alberga, Q.C. and O.L. Panton for the respondents.

Cases cited:

(1) Culley v. Doe d. TaylersonENR(1840), 11 Ad. & El. 1008; 113 E.R. 697.

(2) Kennedy v. de Trafford, [1896] 1 Ch. 762; on appeal, [1897] A.C. 180; [1895–9] All E.R. Rep. 408, applied.

(3) Nepean v. Doe d. KnightENR(1837), 2 M. & W. 894; 150 E.R. 697.

(4) Paradise Beach & Transp. Co. Ltd. v. Price-Robinson, [1968] A.C. 1072; [1968] 1 All E.R. 530, applied.

Legislation construed:

Limitation of Actions Law (Laws of the Cayman Islands, 1963, cap. 86), s.3: The relevant terms of this section are set out at page 294, lines 33–35.

s.4: ‘The right to . . . bring an action to recover any land . . . shall be deemed to have first accrued at such time as hereinafter is mentioned, that is to say-

(b) when the person claiming such land . . . claims the estate or interest of some deceased person who has con- tinued in such possession or receipt in respect of the same estate or interest until the time of his death, and has been the last person entitled to such estate or interest who has been in such possession or receipt, then such right shall be deemed to have first accrued at the time of such death;

(c) when the person claiming such land . . . claims in respect of an estate or interest in possession granted, appointed or otherwise assured by any instrument (other than a will) to him, or some person through whom he claims by a person, being in respect of the same estate or interest in the possession or receipt of the profits of land . . . and no person entitled under such instrument has been in such possession or receipt, then such right shall be deemed to have first accrued at the time at which the person claiming as aforesaid, or the person through whom he claims, became entitled to such possession or receipt by virtue of such instrument . . . .’

s.14: The relevant terms of this section are set out at page 295, lines 12–21.

s.30: ‘At the determination of the period limited by this Part of this Law to any person for . . . bringing any action or suit, the right and title of such person to the land . . . for the recovery whereof such entry, distress, action or suit respectively might have been made or brought within such period, shall be extinguished.’

Registered Land Law (Revised) (Law 21 of 1971, revised 1976), s.23: The relevant terms of this section are set out at page 290, lines 20–25.

s.140: The relevant terms of this section are set out at page 290, line 34 – page 291, line 6.

Limitation of Actions-interests in land-possession-limitation period not extended for absent co-tenant by possession through other co-tenants merely by virtue of their possession if no agency, trust or fiduciary relationship

Land Law-registration-rectification of register-co-tenant only entitled to rectification of Land Register under Registered Land Law (Revised), s.140 if name omitted by fraud or mistake-submission for registration by one co-tenant of deed naming all co-tenants evidence that no fraud

The appellant brought an action against the respondents in the Grand Court seeking (a) a declaration that he was entitled to an account and a one-third share in respect of the proceeds of sale of land formerly in the respondents” possession but sold by them to a third party; and (b) rectification of the Land Register to show his own interest in the remaining portion of the land.

By a deed made in 1939, the appellant and the respondents (two sisters) had been made a gift of land by the respondents” father, to be shared by them equally as tenants in common. A special condition of the deed was that the appellant was required to cultivate the land in order to maintain his right to any part of it.

In 1953, the donor added a postscript to the deed that he was leaving one of the respondents ‘in charge’ for as long as she was alive. He died in 1954 and the sisters took up possession of the land and continued to cultivate it. In the meantime the appellant had gone to live abroad and

the sisters were subsequently led to believe that he would not be returning to the Islands, though from time to time he sent them money and they in turn sent him money obtained from the proceeds of sales of sand and fill taken from the land.

Following the introduction of the Land Adjudication Law and the Registered Land Law in 1971, the sisters submitted their application for registration and supported it by including their father”s deed. They did not apply on behalf of the appellant although his name was on the deed and no attempt was made to conceal it. Since the registration was uncontested, the sisters were registered with absolute title to the land in their names only. They then proceeded to sell part of the land in 1980.

In that same year, the appellant unsuccessfully applied to the Land Registrar to have his title to a share in the property registered. He then brought the present proceedings in the Grand Court claiming a one-third share in the proceeds of sale of the land sold and seeking rectification of the register under s.140 of the Registered Land Law to have his share in the title registered in relation to the remaining part of the land.

He submitted that (a) by the deed of gift, he was entitled to a share in the land and had a right of possession as a tenant in common; (b) the respondents had acknowledged his interest in the land by occasionally sending him money obtained from the products of the land and by notifying him of the survey and adjudication processes preceding its registration-not only had he assisted them financially on occasions but he had sent money to one of the sisters as his agent specifically to help with the arrangements for registration; (c) alternatively, his interest was assured by virtue of the postscript nominating her to be ‘in charge’ which made her a trustee on his behalf; and (d) the sisters had led him to believe that they had registered him as a part-owner of the land; he had only discovered in 1980 that he had been omitted from the register and when he asked them to correct this by executing a transfer of the unsold portion and giving him his share of the proceeds of sale, they had refused to do either.

The respondents submitted in reply that the appellant was not entitled to the relief claimed in that (a) he had lost his interest in the land as a tenant in common as he had not met the condition of the gift which required him to ‘work’ the land; in fact he had been living abroad since their father”s death; (b) no relationship of agency or trust had been created between them; (c) at the time they had registered the land they had done so unopposed; and (d) the appellant was in any event barred under the Limitation of Actions Law (cap. 86) from bringing the action.

The Grand Court (Summerfield, C.J.) concluded that (a) the condition of the gift requiring the appellant to ‘work’ the land or lose his interest was void; (b) there was no evidence to support his claim that the respondent to whom he had sent money and who had been left in charge of the land had been acting as either a trustee or agent on his behalf, and as a matter of law, the postscript identifying her as the one ‘in charge’ did not make her a trustee on behalf of herself and the others; (c) the land adjudication process under the Land Adjudication Law, 1971 was

final and, although the appellant could seek the court”s intervention under s.23 of that Law, he could not also do so under the Registered Land Law (Revised); (d) alternatively, although s.140 of the Registered Land Law (Revised) specifically provided for the court to rectify any registration where it ‘had been obtained, made, or omitted by fraud or mistake,’ neither of these had been established; and (e) under the Limitation of Actions Law (cap. 86), s.14, the appellant had clearly never been ‘in possession’ of the land and by ss. 3 and 4 of that Law, he was barred from bringing the action as it was already more than 12 years from the last possible circumstance that would have given him such a right, namely the date on which the deed was delivered.

On appeal, all the parties repeated their submissions in the lower court.

Held, dismissing the appeal:

(1) Under the Limitation of Actions Law (cap. 86), ss. 3 and 4, the appellant was barred from bringing any action laying claim to an interest in the land because the limitation period had already expired. It had started to run against him with effect from the date on which the right to possession accrued to him, i.e. either the date of the death of the donor, the date of the deed, or the date of its delivery, and had not been extended by any act of possession by him or on his behalf. The respondents had always been in exclusive possession of the land for their own use and benefit and not that of the appellant, either as his trustees or agents, or by virtue of any fiduciary relationship arising from his leaving the management of the land in their hands, or (by the Limitation of Actions Law (cap. 86), s.14) by their possession as co-tenants. The 12-year limitation period had therefore expired and by s.30 of the Law the appellant”s right and title to the land had automatically been extinguished at the end of that period. It followed that the Grand Court had been justified in not exercising its equitable jurisdiction to grant him an account of and share in the proceeds of sale of the land (page 294, line 31 – page 295, line 31; page 296, lines 14–22).

(2) Moreover, even if he did have a right of action, the appellant would only have been entitled to rectification of the Land Register under s.140 of the Registered Land Law if he could have proved that the sisters had fraudulently or mistakenly omitted his name when registering the land. Neither mistake nor fraud had been established, since the...