Carey v First Federal Employees Mutual Investment Ltd

JurisdictionBahamas
CourtSupreme Court
JudgeOsadebay, Actg. J.
Judgment Date08 Jun 1994
Docket NumberNo. 239 of 1994

Supreme Court

Osadebay, J

No. 239 of 1994

Carey
and
First Federal Employees Mutual Investment Limited
Appearances:

Sir Leonard Knowles for the plaintiff.

Mrs. Judy Whitehead for the defendant

Real property - Title — Whether letter dated 4th February 1994 from a company is sufficient to answer to the requisition contained in the letter dated 31st January 1994 and whether gift dated 20th Dec 1960 is a good root of title to the plaintiff to the said land subject of the agreement dated 29th Dec 1993 and whether the plaintiff has deduced a good and marketable title to the said land — Court held that the letter was a sufficient answer to the requisition and that the Deed of Gift was a good root of title — Judgment for the plaintiffs.

Osadebay, Actg. J.
1

This is a vendor and purchaser summons taken out by the plaintiff as vendor seeking the determination of the Court on the following questions:–

1
    Whether the Letter dated the 4th February, 1994 from Roberts, Isaacs and Co., (which is exhibited to the statement of facts herein (and marked (L.K.4”) is a sufficient answer to the requisition contained in the letter dated 31st January, 1994 (which is exhibited to the statement of facts marked (L.K.2”), and 2. Whether the Deed of Gift dated the 20th December, 1960 (which is exhibited to the statement of facts herein and marked “L.K.3”) is a good root of title of the plaintiff to the said land the subject of the agreement of sale dated the 29th December, 1993 (which is exhibited to the statement of facts herein and marked “L.K.1.”), and whether the plaintiff has deduced a good and marketable title to the said land.
2

The summons was filed on the 7th March, 1994, accompanied by a statement of facts which recites the facts in this matter as follows:–

Statement of Facts

  • 1. By an agreement dated the 29th December, 1993 and made between Peter Carey and First Employees Mutual Investment Limited, Peter Carey agreed to sell all the shares in Pennyfield Limited. The said agreement is exhibited hereto and marked “L.K.1.(.

  • 2. Pennyfield Limited is seised of certain land situated in Bernard Road, New Providence, which is described in the schedule to the said agreement.

  • 3. By letter dated the 13th January, 1994 Messrs Graham Thompson & Co., who are acting for the intended purchaser in the sale referred to in 4 paragraph 1, have objected to the title, on the ground that a voluntary Deed of Gift dated the 20th December, 1960 and made between (1) Pontius Adderley and (2) Olive Ellen Adderley, cannot be relied on by the vendor as a good root of the title. This letter is exhibited hereto and marked “L.K.2” and the said deed of gift is exhibited hereto and marked “L.K.3”.

  • 4. By letter dated the 4th February, 1994, Roberts, Isaacs and Co., on behalf of Canadian Imperial Bank of Commerce and Pennyfield Limited, replied to the said letter dated the 31st January, 1994 contending that the said Deed of Gift was a good root of title. The said letter dated the 4th February, 1994 is exhibited hereto and marked “L.K.4”.

  • 5. No other objection to the title to the said land has been made, and it has been in fact satisfactorily deduced to a Conveyance to Pennyfield Limited dated the 10th December, 1991.”

3

The defendant has not taken issue with the facts as stated above which appear in the statement of facts filed by the plaintiff.

4

As can be seen from the above statement of facts, there is a conveyance as the vendor on the 10th December, 1991. No objection is raised by the defendant to this conveyance. The defendant has refused to complete the purchase by accepting and taking title contending that the deed of gift dated 20th December, 1960, and made between Pontius Adderley and Olive Ellen Adderley, even though 33 years old does not constitute a good root of title. The defendant further contends that as that deed is a “Voluntary Conveyance”, having been made without consideration except for the natural love and affection which the grantor has expressed for the grantee, it does not constitute a good root of title as agreed to between the plaintiff and the defendant and provided for in clause 5 of the agreement for sale dated 29th October, 1993. Counsel for the defendant submits that the deed of gift dated 20th December, 1960 does not constitute a good root of title. Counsel for the plaintiff of course does not agree and submits that that Deed of Gift constitutes a good root of title as required under the law. Both Counsel in this matter refer to the case of In re Marsh and Earl Granville (1883) 24 Ch. D. 11 in support of their case except that counsel for the defendant /purchaser sought additional support in the statement by J.T Farrand, LLD. Professor of Law at Manchester in his book “Contract and Conveyance” which statement I shall be returning to shortly and also paragraph 143 of Halsbury's Laws of England 4th Edition Volume 42 inter alia.

5

The first thing to do in this matter is to determine what the parties bargained for in order that it may be determined whether the vendor has complied with the bargain.

6

The agreement for sale made between the vendor and the purchaser and dated 29th October, 1993, provides in Clause 5 amongst other things that:

“Within Fourteen (14) days from the date hereof the vendor shall produce or cause to be produced to the purchaser or its attorneys all of the documents of title relating to the said hereditaments together with certified copies of such other documents and such other information as the purchaser or its Attorneys shall reasonably require to deduce a good root of title in accordance with the provisions of The conveyancing and Law of Property Act a good marketable title in fee simple free from encumbrances.” (Emphasis — Mine)

7

From the above, it is clear to me that the vendor has contracted to sell to the purchaser property with — “a good root of title in accordance with the provisions of The Conveyancing and Law of Property Act a good marketable title in fee simple from encumbrances.” As I understand it, the defendant/purchaser has refused to complete purchase because of the vendor has not produced to him — “a good root of title” in accordance with the law and a “marketable title”. He has not declined to complete because the title is encumbered. But is that so? Counsel for the defendant claims that instead of the above, the vendor has produced to the purchaser instead, a “Voluntary Conveyance.” Without warning him or disclosing prior to entering into the contract that he, the vendor, has a title rooted in a “Voluntary Conveyance”. Counsel for the defendant/purchaser submits that a (Voluntary Conveyance' cannot constitute a good root of title.

8

Counsel for the defendant began her submission on the premise stated above be relying on a statement contained in “Dart's Treatise on the Law and Practice Relatzna to Vendors and Purchasers of Real Estate 7th Edition, Volume I, 1905 at page 333 where the learned Authors state:–

“A voluntary deed is not a proper root of title” (voluntary conveyance)

9

This statement of proposition is in that book alleged to have been rooted in a case Re Marsh and Earl Granville (1883) 24 Ch. D. 11, a case which in this matter is relied upon by both counsel as I pointed out earlier. The learned Authors also support their above statement or proposition with a case Noyes v. Patterson (1894 3 Ch. 267).

10

I have examined these two cases cited by the Learned Authors in support of their proposition but find nothing in those two cases to support such statement which I consider as a bold statement of the law. Infact in these two cases I find support for the contention by counsel for the plaintiff that a voluntary conveyance may constitute a perfectly good root of title provided that if the vendor proposes to rely on a voluntary conveyance which life is less than the statutory period stipulated by law then the vendor must say so in advance and provide a full description of its nature and any special provisions therein which the purchaser ought to know.

11

In re Marsh and Earl...

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