Farrington and Estate Title Company Ltd v Harrisville Company Ltd

JurisdictionBahamas
CourtCourt of Appeal
JudgeBourke, P.,Archer, J.A.,Hogan, J.A.
Judgment Date13 Jun 1973
Neutral CitationBS 1973 CA 3
Docket NumberNos 13 & 14B of 1973

Court of Appeal

Bourke, P.; Archer, J.A.; Hogan, J.A.

Nos 13 & 14B of 1973

Farrington and Estate Title Co Ltd
and
Harrisville Co Ltd
Appearances:

Cladwell Farrington appeared in person.

Mr. Alexancder Maillis for Estate Title Co Ltd.

Mr. Turnquest and Mr. Christie for the respondent.

Real property - Constructive possession

Bourke, P.
1

I agree with the judgment of Hogan, J.A. which I have had the advantage of reading. Having studied the evidence and listened to the submissions put forward at great length for the Estate Title Co Ltd, I must say that I think the investigating judge was fully justified in describing this adverse claim as a most speculative one. A great deal of the argument was taken up with an attack upon the title as shown for the respondent; but the weakness of this appellant's case introducing at best some vague suspicion of a title, put it in no position to embark on such an exercise with any hope of success. As for the appellant Mr. Farrington, he has not even succeeded in any clear identification of those portions of the tract to which he claims title. Adverse claims of this character are a waste of time and expense.

Archer, J.A.
2

I also agree.

Hogan, J.A.
3

These proceedings are concerned with an area of upwards of 117 acres situate on the Island of Eleuthera, called the ‘Sweeting’ Tract, and with an adjoining area, known as the ‘Kemp’ or the ‘Ben Kemp’ Tract.

4

The respondents have been successful in the lower Court, in their claim to be beneficial owners in lawful occupation of both tracts which they claim to have acquired by purchase and to be part of a very much larger plantation or farm run by them and known as ‘Hatchet Bay’. The first appellant claimed to be in occupation of 50 acres in the Sweeting Tract and 30 acres in the Ben Kemp Tract and to have title through long possession. The second appellants did not claim to have been in occupation but said they had agreed, in May 1970, to purchase, subject to conditions, two undivided one-quarter shares in the Tweeting tract from the heirs of two of the four original grantees of this tract.

5

The first and second appellants were adverse claimants in the proceedings whilst the respondents were the petitioners and began their abstract of title to the area with a Crown grant, dated 11 April 1807, to William Sweeting of:

‘All that tract of land containing by admeasurement 117 acres situate lying and being on the Island of Eleuthera bounded Southwardly by Albertha Kemp lands Northwardly by the sea and on all other sides by the sea.’

6

These boundaries are difficult to reconcile with subsequent descriptions of the land and the position is not made easier by the mutually accepted fact that the sea actually lies North East of the Sweeting tract, which has led to its being described on occasions as the Northern boundary and on others as the Eastern boundary with consequential changes in the description of the other limits.

7

In the course of the proceedings the petitioners have conceded that they were unaware, when preparing their abstract, that the 1807 grant had subsequently been escheated and that, following the escheat, the area was made the subject of a later grant, dated 23 November 1847.

8

This document, to which I will return later, did not appear in the petitioner's abstract which then proceeded to an indenture dated 13 June 1907, whereby Thomas B Johnson purported to grant unto Albert Thomas William Johnson all his right, title and interest in and to a-

“Tract of land situate at Crosskill Hills, in the Island of Eleuthera, and containing 117 acres and bounded as follows; on the North by a tract of land granted to one William Hamilton, on the East by sandbanks on the South by vacant lands and on the West by a tract of land granted to one Benjamin Kemp, -the said tract of land having been granted to one William Sweeting.”

9

The document went on to say that the said Thomas B Johnson's right title and interest in and to the said tract of land consisted of a fourth interest in the said tract. It also contained a covenant as to the right to convey.

10

Following was an extract of an indenture dated 10 July 1907, whereby John Henry Sweeting granted unto Jerome E Pyfrom all the said John Henry Sweeting's right title and interest in the tract just mentioned. The document went on to say that the said John Henry Sweeting's title consisted of a half interest in the said tract and also contained a covenant as to the right to convey.

11

By the next indenture abstracted, dated 15 July 1907, the said Albert Thomas William Johnson purported to grant unto the said Jerome E Pyfrom the one-quarter interest which he had acquired under the indenture, already abstracted, of 13 June 1907.

12

A little later in the abstract appears as indenture dated 14 January 1928 whereby the said Jerome E Pyfrom purported to grant and convey unto Artemas Paul Pritchard, inter alia, one undivided three-fourths interest in the said 117 acres for an estate in fee simple.

13

It is on these documents of 1907 and 1928 that the respondents now rely for their root of title. The 1907 documents have been attacked by counsel for the second appellants, Mr. Maillis, as being little more than quit claim deeds since they do not purport to transfer a fee simple interest nor do the grantors in the documents purport to hold such an interest. Mr. Turnquest for the respondents seeks to meet this criticism by saying that the grantors in the 1907 documents purport to transfer the whole of their interest in the property and that this is sufficient to constitute a good root of title but, failing that, then the document of 1928 which purported on the face of it to transfer a fee simple interest would provide a good root of title going back for more than 30 years, which is the statutory period prescribed by s 3(4) of the Conveyancing and Law of Property Act (cap 115).

14

It seems to me very questionable whether the 1907 documents measure up to the requirement of purporting to transfer an estate or interest greater than, or equal to, that claimed by the respondents but that defect is met by the 1928 document which is, on the face of it, a good root of title; being made on an occasion where the title the subject of the conveyance would be investigated (see Re Marsh and Earl Granville (1883) 24 Ch D 11) and being more than 30 years old, it would, unless displaced, meet the requirements of s 3(4) of cap 115.

15

But that title could of course be displaced by a better one and Mr. Maillis has sought to show that his clients have such a title to a half share in the property. No criticism was directed at the form of the documents purporting to deal with the interest or alleged interest of Mr. Pyfrom as acquired in 1928 but Mr. Maillis attacked the alleged root of title on the ground that the land in question, the Sweeting tract, was the subject of a Crown grant in 1847 to four named grantees and that his clients hold an agreement to purchase from heirs of two of these grantees a half share in the land. He admitted that the quarter interest in the land originally granted in 1847 to Susan Parks, one of the four, has been acquired by the respondents through another chain of title and no longer seeks to maintain that the remaining quarter, what has been called the Martha Johnson interest, has been acquired by his clients.

16

The validity of the 1847 grant is now accepted by both sides. The grantees under it were William Sweeting, Martha Johnson, John Sweeting and Susan Parks. The respondents maintain that these were the children of the William Sweeting who received the 1807 grant that was subsequently escheated.

17

The second appellants put forward this grant in their abstract of title as their root of title but an earlier warrant dated 19 November 1847 for the survey and laying out of this area with a view to granting it to the said grantees was also mentioned.

18

In the grant the description of the land is as follows:

‘All that tract of land situate on Eleuthera containing 117 acres originally granted to William Sweeting bounded on the North by the sea on the East by vacant land on the South by land granted to Kemp and on the West by land granted to William Hamilton.’

19

The description of the land in the warrant is substantially the same but it contains a plot with dimensions that are of considerable significance to the later argument on the question of possession.

20

The second appellants maintained that William's share devolved, on his death intestate, to Anthony Sweeting as heir-at-law and that the latter left such share, by a general residuary bequest, to a son, Washington Mulgrave Sweeting, generally called ‘Mulgrave’, from whom the second appellants agreed to buy his interest. Another claimant, however, also joined in this agreement, Wilmington Sweeting, whose father, Edward, was also a son of Anthony Sweeting and a half-brother of Mulgrave. It is alleged that Edward did not accept the validity of the bequest to Mulgrave and a copy has been put in of the schedule of assets passed in the administration of the estate of Edward Sweeting (Probate Action No 285 of 1965), which includes an item of 117 acres. This item is stated to be at Upper Bogue but Wilmington, in evidence, claimed that this was a mistake and that the entry should have shown ‘Hatchet Bay’ which would bring it into the area in dispute. Although Wilmington's interest is not entirely clear, in evidence he said that his father had at least four other...

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