Lot B Ltd v Warry

CourtCourt of Appeal (Bahamas)
JudgeBourke, P.,Hogan, J.A.,Archer, J.A.
Judgment Date13 June 1973
Neutral CitationBS 1973 CA 2
Docket NumberNo. 10 of 1972
Date13 June 1973

Court of Appeal

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

No. 10 of 1972

Lot B Ltd

Mr. Jerome Pyfrom for the appellant.

Mr. James Liddell for the respondent.

Real property - Title to land — Good and marketable

Bourke, P.

This appeal is against a decision of Cunningham Smith J made in proceedings on originating summons commenced by the appellant, Lot B Ltd, against Charles B Warry, respondent. The question for resolution was whether good and marketable title had been shown in respect of certain freehold property which the appellant had engaged itself under contract for sale to purchase from the respondent. The judge came to the conclusion on the particular ground now under review that such title had been established.


The contract was entered into on 24 September 1970, between Mr. C B Warry and the late Edith Sybil Warry as vendors. The latter died subsequent to proceedings brought and an amended summons was filed dated 28 April 1972. The property was a freehold premises broadly described as ‘Green Shutters Inn’. A deposit of $10,000 was paid and there was the customary provision as to its refund and cancellation of the contract should the vendors be unable to produce a good and marketable title or such title as the purchaser shall be willing to accept; if the vendors did show title and the purchaser failed to complete there was stipulation for forfeiture of the deposit and cancellation of the agreement.


A long and voluminous correspondence ensued between the legal representatives of the parties on requisitions and objections made as to the title with resulting impasse on one main question which was a subject of these proceedings. The original vendor and purchaser summons was lodged by the appellant on 9 February 1971. Further correspondence followed and finally the vendor put the purchaser on notice to complete: such notice has now been withdrawn and nothing in the present proceedings turns upon that. The amended originating summons was filed and the matter was concluded in June 1972. The decision, as has been observed, went in favour of the vendor in that a good and marketable title was held to be disclosed: but this did not satisfy the purchaser, who has appealed.


The vendors' root of title goes to the will of the late William John Pinder admitted to probate on 5 January 1922. It is brief enough to quote:

‘… 1. I appoint Ralph Gregory Collins, Merchant, and the Honourable George Gamblin, Bank Manager, both of the city of Nassau aforesaid, Executors and Trustees of this my will (hereinafter called my Trustees) and also to be Guardians of my minor children.

2. I give devise and bequeath to my Trustees all the estate and effects whatsoever and where so ever both real and personal to which I may be entitled or which I have power to dispose of at my decease upon the following trusts: First as to my residence in Parliament Street number 421 Parliament Street in trust for my wife for and during her life or widowhood; and upon her death or remarriage for my son William Brice Pinder who may occupy the same free of rent; Second as to the cottage immediately to the south of the said residence in trust for my daughter Virginia Anne Pinder who may occupy the same free of rent; Third as to the residue of my said estate in trust for my said son and daughter in equal shares and as tenants in common; Fourth I direct that during the infancy of each of my said children my trustees shall use the income from his or her share of my estate for his or her maintenance education and advancement; upon such of my said children attaining the age of twenty-one years the whole of the net income from his or her share shall be paid to him or her; and upon each of my said children attaining the age of thirty years the whole of the share of such child paid and transferred to him or her.’


The problem at issue concerns the ‘cottage’ so devised in trust for the testator's daughter, Virginia.


On 19 February 1930, the executors and trustees ‘as personal representatives’ made a deed of assent under s 5(1) of the Real Estate Devolution Act (cap 153), by which they:


‘DO HEREBY ASSENT to the following devise, contained in the will above referred to, that is to say:

“Second. As to the cottage immediately to the South of my said residence in trust for my daughter Virginia Anne Pinder who may occupy the same free of rent”. The said cottage is represented by that part of the Plan hereto attached which is coloured Brown.’


It appears that an assent in similar terms was made in the case of the other beneficiary William Bruce Pinder. At the time of the assent to the devise to Virginia it is not in dispute that she had not reached 30 years of age; but William Brice Pinder had attained such age. However, both children of the testator did attain 30 years. As it was understood by the judge, and is not in contest, both Virginia and William Pinder subsequently conveyed their properties which passed through various persons until the cottage and some small part of William's holding came to Mr. and Mrs. Warry. If the appellant is correct it means that all that passed along this chain of disposition of the cottage was an equitable interest or mere holding title and that the legal estate in the freehold is vested elsewhere, namely, as it is submitted, in the personal representatives to the original trustees, now deceased, named in the will, whoever they are and wherever they may be, or their personal representatives. If this is the effect of the law then it means that the testator's intention was frustrated, for on reaching 30 years Virginia would not have the absolute interest in fee simple.


As I understand it, subject to a question as to boundaries something has been worked out to satisfy the parties in regard to the small portion of the property agreed to be sold stemming from William; it has been expressly said by Mr. Pyfrom for the appellant that the present problem primarily concerns Virginia's ‘cottage’ and it is in relation to this cottage that argument has proceeded.


Then by an order of the Supreme Court made in an action No 116 of 1930, the original trustees Ralph G Collins and George H Gamblin were discharged and the Montreal Trust Co of Nassau, Bahamas, was appointed trustee in their place. The order vesting the real estate referred to in the schedule attached to the said order omitted any reference to the property the subject of this originating summons. For the appellant it is contended that the omission means that the subject property remained vested in the original trustees under the will. It seems, however, that the view was taken by all concerned at the time of the order that the assents by the original executors and trustees were sufficient to pass the full title to the beneficiaries and so the properties were not included in the schedule.


The learned judge of trial accepted this same view on the arguments submitted for the respondent before him. In particular the authority relied upon was, as it is here, Stevenson v Liverpool Corp (1874) LR 10 QB 81. In addition the judge attached importance to Doe d Shelley v. Edlin (1836) 4 AD & El 582, 111 ER 906 which was not put forward by counsel and is not relied upon before this Court. In expressing his decision the judge said:

‘For my part, I take the assents to be a recognition by the executors that the properties were not required by them to meet the testator's liabilities. The executors’ duties so far as the properties were concerned were at an end. The devise to the trustees took effect and according to the principle of law as stated in Doe d Shelley v. Edlin (1836) 4 Ad & El 582, 111 ER 906, the legal estate vested in each of the two beneficiaries as each attained the age of 30 years subject in the case of William Brice Pinder to his mother's life interest. No doubt a conveyance by the trustees would have been in conformity with good conveyancing practice but on or after reaching the age of 30 the beneficiaries had the legal estate and their right to convey is unchallengeable.’


I do not think that I need refer in any great detail to the Edlin case. We have been invited to disregard it. I agree with both counsels that it does not govern the instant matter. It was decided prior to the Wills Act, 1837, and was a case in which a testatrix devised estates to N in fee in trust to receive and apply the proceeds to the use of S, the sister of the testatrix, for her life, and, from and immediately after the decease of S to convey the same to such uses as S should by deed or will appoint. There was no devise over. S died in the lifetime of the testatrix. It was held:


(1) That the death of Sin the testatrix's lifetime was not an implied revocation of the will. (2) That the estate devised to N did not lapse by reason of S's death but vested in N at the death of the testatrix. (3) That the estate vested in N was an absolute legal fee. Lord Denman CJ referring to the general rule as stated by Smith J and based upon cases such as Doe d White v. Simpson (1804) 5 East 162, 102 ER 1031 (a case that was among those mentioned by the judge in the present matter) went on to say (4 Ad & El 582 at 590, 111 ER 906 at 909):

‘But these cases are such as that the Courts held upon the construction of the instruments themselves, and for the purpose of carrying the trusts into execution, and in some cases coupled with the apparent intention of the testator, that the trustees took only an estate either for years, or for an uncertain chattel interest, or for the lives of themselves or others, or a base fee determinable on certain events; and that construction has been placed upon the various wills, though in some of them the testator has used words of limitation, or which of themselves alone, if not coupled with other expressions, would seem to carry an estate of inheritance.’


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