Duncombe v Duncombe

• Jurisdiction: Bahamas
• Court: Court of Appeal (Bahamas)
• Judge: Smith, J.A.,Luckhoo, J.A.
• Judgment Date: 15 February 1982
• Neutral Citation: BS 1982 CA 7
• Docket Number: Civil Side No. 6 of 1981
• Date: 15 February 1982

Court of Appeal

Blair-Kerr, P.; Smith, J.A.; Luckhoo, J.A.

Civil Side No. 6 of 1981

Duncombe

and

Duncombe

Real property - Possession

Real property - Deed of gift — Undue influence

Smith, J.A.

1 The appellant, Constance Duncombe, claimed to be the beneficial owner of the land in dispute and sued for possession thereof from the respondent, Frederick Duncombe, who was in physical occupation of this land. The respondent averred that he was the owner thereof in fee simple and counterclaimed for a declaration to that effect. The learned trial judge dismissed both the claim and the counterclaim.

2 Melvin Duncombe Senior was the owner of the land known as Lot. No.20 situated at Alice Town, Bimini, a portion of which he conveyed to his son Melvin Duncombe Junior in fee simple by an indenture of 18th January, 1949 in which the land was described as: –

“All that piece of Lot No.20 51 X 60 in Alice Town, North Bimini, Bah, bounded on the East by Public Street on the South by G.R. Sherman on the West by Fred Duncombe and on the North by Public Street.”

3 Melvin Duncombe Junior died, a bachelor, on 11th October, 1964, leaving as his heir-at-law his nephew Leslie Duncombe the eldest son of his eldest brother Dorral Duncombe. At that time Frederick Duncombe, the respondent, a brother of the deceased, was in occupation of this piece of land and has continued in occupation thereof. His sister Constance Duncombe, the appellant, became the administratrix of the estate of her brother Melvin Duncombe Junior by a grant to her of letters of administration to his estate dated 4th October 1965 as attorney of the heir-at-Law, Leslie Duncombe, and the grant was expressed to be ‘for the use and benefit of Leslie Duncombe until such time as he shall apply for and obtain administration’.

4 However, prior to the grant of letters of administration Leslie Duncombe on 21st December 1964 executed a deed of gift in favour of Constance Duncombe, the appellant, purporting to convey to her the fee simple of this land described therein as:–

“…..the Eastern portion of Lot No.20 in the settlement of Alice Town in the Island of Bimini and bounded on the North by a Public Road and running thereon fifty-one (51) feet more or less on the East by a Public Road and running thereon sixty (60) feet more or less on the South by land the property of George R. Sherman and running thereon fifty-one (51) feet more or less and on the West by land the property of Frederick Duncombe and running thereon sixty (60) feet more or less …….”

5 Leslie Duncombe also executed, prior to the said grant of letters of administration, another indenture dated 3rd August 1965 in which he purported to convey the same piece of land to his uncle Frederick Duncombe, the respondent, in consideration of the sum of £50. Both this indenture and the deed of gift were held by the learned judge to be of no effect.

6 On 23rd October 1972 Constance Duncombe as administratrix executed what purported to be a deed of assent of this land in favour of Leslie Duncombe as heir-at-law. This document as the learned judge found, and as both counsel in this appeal have conceded, was of no effect since section 5(1) of our Real Estate Devolution Act (Ch. 153) providers that upon the death of the owner of any land:

“……. his personal representative may by deed assent to any devise contained in his will or may convey the land to any person entitled thereto as heir, devisee or otherwise,”

7 In other words a deed of conveyance was necessary for the administratrix to pass the legal estate to the heir-at-law or otherwise.

8 On 3rd January 1978 Constance Duncombe as administratrix executed a vesting deed in favour of herself as beneficial owner of the said piece of land. This deed was set aside by the learned judge who held that the legal estate in the land continued to vest in her as administratrix.

9 While Mr. Whitfield for the appellant accepted the principles of law set out in the judgment, he submitted that the learned judge had erred in his application of the law to the facts of the present case and in particular erred in holding that the...