Roberts v Strachan

• Jurisdiction: Bahamas
• Judge: Sawyer, J
• Judgment Date: 22 January 1991
• Court: Supreme Court (Bahamas)
• Docket Number: Common Law Side No. 1173 of 1989
• Date: 22 January 1991

Supreme Court

Sawyer, J.

Common Law Side No. 1173 of 1989

Roberts

and

Strachan

Appearances

Mrs. Ruth M.L. Bowe-Darville for plaintiff

Mr. M.S.A. Turner for defendant

Mr. D. Edwards for third-party

No appearances by or on behalf of Valarie Bain-Thurston, 4 ^th Party

Land law - Declaration — Plaintiff seeing declaration that she is beneficial owner of parcel of land — Plaintiff purchased land in 1969 from owner who later purported to convey part of same parcel to persons through whom defendant obtained title — Whether plaintiff entitled by virtue of her documentary title to Lot No. 3 or any part thereof — Substantial misdescription in defendant's conveyance and those of his predecessors in title — No evidence of laches on part of plaintiff or defendant — Rectification of conveyance — Defendant and third party to be indemnified.

Sawyer, J

1 At the conclusion of the hearing in this matter, I granted a declaration in favour of the plaintiff that she is the beneficial owner in fee simple of that 25' x 50' portion of Lot No. 3 which has as it's Northern boundary Cordeaux Avenue, ordered the Third Party to indemnify the defendant and to rectify the conveyance to the defendant (such indemnity to include legal costs and to be assessed by the Registrar of the Court unless otherwise agreed). It was also ordered that the 4 ^th party indemnify the Third Party and rectify that conveyance, the quantum of the indemnity to be assessed by the Registrar if not agreed and to include legal costs.

2 At that time, I promised to give my reasons in writing later and I do so now.

3 By an originating summons filed 11th August, 1989, the plaintiff sought a declaration that she is the beneficiary (sic) fee simple owner of all that piece parcel or lot of land being lot number (3) in Block number Eight (8) in a Subdivision known as Englerston by virtue of her documentary title, damages for trespass and costs. At the start of the trial, the claim for damage for trespass was abandoned and the only issue for me to consider was whether the plaintiff was entitled by virtue of her documentary title to lot No. 3 s or any part thereof.

4 The evidence of the plaintiff, which was not disputed by the defendant, was that she purchased a 25' x 50' piece of lot No. 3 from one Ezekiel Forbes in 1969 and that prior to that purchase, she had occupied the piece of land under a lease from the same Mr. Forbes since 1960. The conveyance which was not drawn by an attorney, apparently, is dated 10th November 1969.

5 The piece of land which the plaintiff purchased is described in her conveyance thus:–

“All that piece parcel or lot of land situate just Last of Key West Street in the Southern District of the Island of New Providence and designated as Lot Number three (3) in Block Number Eight (8) in a Subdiversion (sic) known as Englerston and bounded on the North by Cordeaux Avenue and running thereon twenty-five feet on the East by land now being conveyed to Gerald Bain and Willamae Bain and running thereon fifty feet on the South by land the property of the Vendor and running thereon twenty-five feet and on the West by land the property of Anora Smith and running thereon Fifty feet.” (Emphasis added).

6 There has not been even a suggestion of fraud in connection with the plaintif'f's claim and I therefore am satisfied that the plaintiff did receive her documentary title from the said Mr. Forbes (who has since, apparently, died on 10th November, 1969.

7 Having conveyed the front portion of Lot No. 3 to the plaintiff on 10th November, 1969, Mr. Forties could not, in law convey any part of that front portion of Lot No. 3 at any time thereafter including the following day (which is the stated date of the conveyance by Mr. Forties to Gerald Willamae Bain through whom the defendant's title to Lot No. 4 is traced).

8 Yet, according to the defendant's affidavit sworn on 19 ^th October, 1989 and filed 20th October, 1989, the conveyance to Gerald and Willarnae Rain of Lot No. 4 and dated 11th November, 1969 purported to convey an area 50' wide by 100' in length/depth.

9 According to the defendant's affidavit, the description of the land conveyed to Gerald and Willamae Bain was described in the conveyance, thus:–

“ALL THAT piece parcel or lot of land bounded EASTWARDLY by land now or formerly the property of one ARNOTT and running thereon One hundred (100) feet NORTHWARDLY by Cordeaux Avenue and running thereon Fifty (50) feet WESTWARDLY partly by land now or formerly the property of VERA ROBERTS and partly by land now or formerly the property of Ezekiel Forbes and running thereon Fifty (50) feet.”

10 Apart from the fact that in that description of Lot Number 4 in Block 8 (“Lot No. 4”) the lot appears to have only three sides, the description itself indicates that the plaintiff was either then in possession or had formerly been in possession of part of the land on the western boundary of Lot No. 4 and that the Vendor, Mr. Forbes was then or had been in possession of another part of the land on that western boundary.

11 Insofar as the conveyance to Gerald and Willamae Bain purported to convey an area of 5,000 sq. ft. it would have had to include both the Northern section of Lot No. 3 as well as the Southern portion of Lot No. 3.

12 According to the evidence of Mr. Benoit, a registered Land Surveyor employed by the Department of Lands and Surveys, lots fronting onto Cordeaux Avenue as laid out on the subdivision plan of Englerston which is on record in the Department of Lands and Surveys had dimensions of 25' on the and back and 80 feet, more or less on each of the sides.

13 Bearing that evidence in mind, I am of the view that the description of Lot No. a in the conveyance to Gerald and Willamae Bain was a misdescription since if that lot was of the size stated, it would have included lot No. 3, part of a 10' road reservation and part of a lot/s in another block.

14 Unfortunately, that rnisdescription was perpetuated in the conveyance by Valarie Bain Thurston to the Third Party and by the Third Party to the defendant even though the president of the of the Third Party, I am satisfied was well...