Maude Campbell v Catherine Joseph

IN THE SUPREME COURT OF GRENADA AND THE WEST INDIES ASSOCIATED STATES GRENADA HIGH COURT OF JUSTICE GRENADA CLAIM NO. GDAHCV2007/0245 BETWEEN MAUDE CAMPBELL Claimant And CATHERINE JOSEPH (Also known as Faith Regis) Defendant Appearances: Ms. Celia Edwards QC for the Claimant Mr. Anselm Clonder for the Defendant 2014: July 4th JUDGMENT

[1]ELLIS, J.: By Fixed Date Claim Form filed on 11th Day of June 2007, the Claimant claimed against the Defendant an order for possession of a lot of land at Molinere, St. Georges containing 17,500 square feet, (the Property) arrears of rent at $100.00 per year from 2003 to 2006, mesne profits from 2007 at $100.00 per year, further or other relief and costs.

[2]The Claimant says that she has been in possession of the Property since about 1980 and collecting the rent since after the death of Clarice Greaves in 1990. The Claimant has framed her claim in landlord and tenant. She alleges that the Defendant was her tenant and that she paid rent first directly to her then to her agent, Susanna Antoine.

[3]At some point during the tenancy and on her behalf, her agent increased the rent from $40.00 to $100.00 per annum. Such rent was due on the 1st June of each year. The Defendant thereafter paid the increased rent until 20th December 2002 when she stopped paying rent.

[4]The Claimant further claims that in 2003, the Defendant (who has her house on the property and who resides therein), commenced construction of a concrete structure on the Property without her permission or consent.

[5]As a result of the non-payment of rent, the Claimant caused a Notice to Quit to be served on the Defendant. The said Notice was dated 17th February 2006 and was due to expire on 31st December 2006. Notwithstanding the expiry of the Notice, the Defendant failed or refused to comply with the demand for vacant possession. Moreover, by Notice dated 11th January 2004, she caused a notice of intended survey to be served on the Claimant. This Notice recorded the Defendant as the “owner of the adjoining lot”.

[6]The Claimant submitted that she does not claim to be the fee simple owner of the Property. Rather, she claims that she is entitled to possession of the Property and that having been in possession, she is entitled to pursue this claim. In support of this contention, the Claimant’s witness, Susanna Antoine at paragraph 3 of her affidavit filed on 11th June 2007 stated that the Property is the subject of a statutory declaration sworn by Urban Neckles on 21st August 2003 and recorded in the Deeds and Land Registry in Liber 30 – 2003 at page 835.

[7]The Claim is trenchantly opposed by the Defendant who states that she is and has been in possession of a lot of land located at Grand Mal, St. Georges known as Lot # 3 since 1974. Her evidence is that the Property was owned by Frank Greaves, who in January 1974 put her into possession of the Property.

[8]According to the Defendant, by oral agreement in 1974, Frank Greaves agreed to sell to her a lot of land being part of a larger portion of land known as Lot 3 and situated at Grand Mal, St. Georges at a purchase price of ten thousand dollars ($10,000.00).

[9]The Defendant’s evidence is that in 1974 she was put into possession of the Property by Frank Greaves pursuant to the agreement for sale. He further agreed that she would pay a modest rent of forty dollars per annum until she was able to raise the full purchase price of EC$10,000.00. Until then, the rental would be attributed toward the purchase price.

[10]Frank Greaves died on 17th October 1982, and was survived by his wife Clarice Greaves to whom the Defendant continued to pay the rent of forty dollars ($40.00) per annum. The Defendant claims that in 1984, together with Clarice Greaves, she attended the Law Offices of Henry, Henry & Bristol for the purpose of arranging the formal transfer of the Property to the Defendant. However, she was advised by Mr. Carol Bristol Q.C., that there was a problem with the title to the land which would result in difficulties.

[11]The Defendant states that during Clarice Greaves’ lifetime, she continued paying rent to her until her death on 27th December 1990 with the expectation that the land would be conveyed to her in accordance with the late Frank Greaves wishes. After the death of Clarice Greaves, she continued to pay rent to the Claimant under the mistaken belief that the Claimant was the sole beneficiary of the estate of Frank Greaves and relying on hope that the Claimant would carry out Frank Greaves’ wish to transfer the Property to her.

[12]The Defendant stated that even after the Claimant left Grenada in 1991, she continued to pay her agent, Suzanna Antoine the annual rental which was increased in 1993 to $100.00. In 2003, she was advised by her Attorney, Mr. Anselm B. Clouden that the Claimant has no legal or other right to receive rents on behalf of the estate of Frank Greaves and she therefore stopped further payments.

[13]In conclusion, the Defendant asserts that she has paid the sum of $2,020 towards the purchase of the Property.

Claimant’s Submissions

[14]In her witness statement filed on 13th November 2008, the Claimant denies that there was ever any discussion between herself and the Defendant’s relative to the purchase of the Property. The Claimant also denied any knowledge of an agreement between Frank Greaves and the Defendant for the sale of the Property. Rather, she stated that Mr Greaves merely wished to assist the Defendant who had been involved in a relationship with his cousin. Her evidence is that the Defendant was put in possession of the Property on the understanding that she would eventually find somewhere to live. The Defendant however remained on the Property paying rent up until 2002.

[15]At paragraph 17 of her witness statement, the Claimant asks the Court for possession of the premises as well as rent, mesne profits and costs. While her claim for possession was initially premised on the basis of the statutory declaration sworn by Urban Neckles on 21st August 2003, during the course of the trial, Counsel for the Claimant submitted that the Declaration had been inadvertently and wrongly referenced in the affidavit of Susanne Antoine. In closing submissions, she clarified that the said Declaration concerned a parcel of land in Grand Mal measuring 11,142 square feet, while the subject matter of this Claim is a parcel of land measuring 17,500 located at Molinere, St. Georges. She submitted that the Claimant would no longer rely on the Declaration as evidencing her title to the Property.

[16]Counsel for the Claimant instead argued that she does not need to prove that she is the fee simple owner of the Property. She submitted that the Claimant had collected rent in respect of this property, not pursuant to the will of Frank Greaves but in her own right. She further submitted that the Defendant paid her rent and continued to do so even after she increased the rental payments to $100.00. Consequently, the Claimant asserts her claim on the basis of landlord and tenant law.

[17]Counsel for the Claimant submitted that it has long been recognised that renting land to a tenant is evidence of possession and she referred the Court to the dicta of Alleyne J in Stephanie Seales v Leon Grant1 where at paragraph 20, the learned Judge noted: “The Claimant thus had no legal or equitable title to the said land at that time. Nevertheless I accept the evidence that she asserted title, by continuing to rent the land to Rosita Woods in the character of the owner of the land, to collect the rent in said character, and to use and dispose of same as owner, without accounting to, or holding herself accountable to anyone in respect thereof.”

[18]The learned Judge later concluded that “… her activities in relation to the land are acts of possession.” 1 SVGHCV 20000.0433, judgment delivered November2001.

[19]Counsel also referred the Court to an excerpt from Hill and Redman Law of Landlord and Tenant 16th Edition in which the learned authors stated: “A landlord and tenant are each estopped from denying the title of the other. As a person without an estate in land may purport to grant a tenancy of the land which grant operates to create a tenancy by estoppel binding on the grantor and the grantee.”

[20]In light of the Defendant’s admissions that she paid rent to the Claimant and that she continued to do so even when the sum was increased in 1993, Counsel for the Claimant submitted that it is not open to the Defendant to set up the Claimant’s lack of title as a defence. Consequently, she submitted that the Claimant is entitled to the reliefs sought.

[21]Moreover, Counsel for Claimant submitted that the Defendant has no clear defence to the action. In her closing submissions, she highlighted the “spectrum of possible defences and evidence” employed by the Defendant in an attempt to evade the Claimant’s prayers. First, Counsel noted that the Defendant’s evidence is that there was a verbal agreement Frank Greaves for the sale of the Property for the sum of $10,000.00. She argued that such a defence is untenable because under the Real and Personal Property Act, an agreement for the sale of land must be in writing in order for it to be enforceable.

[22]She further pointed out that the Defendant’s evidence in regard to the sale is woefully deficient. Counsel asked the Court to note that although the Defendant’s affidavit stated that she occupied the land pursuant to the agreement for sale, under cross-examination the Defendant testified that agreement for sale was arrived at after she went into occupation. In addition, the Defendant contended that she attended Henry, Henry and Bristol together with Clarice Greaves in order to complete the transfer of the property. Although her affidavit reflects that she did not complete the transaction because she was told that Frank Greaves had no proper title to convey, under oath she testified that she did not purchase the Property because she did not have the entire purchase price. Her evidence further vacillated when she testified that she had in her possession the sum of $4000.00 which she intended to use towards the purchase price. She did not purport to pay the said sum over, but rather ceased paying further rental because according to her, she received legal advice that Frank Greaves did not have legal title to the Property. She stated that it was then that she decided to enter a claim for the Property in her own right and she retained a surveyor who issued a Notice to Survey.

[23]Originally, the Defendant denied that she received the 2006 Notice to Quit. This was later traversed when she admitted that the Notice was the first correspondence which she received from the Claimant’s Attorneys. Counsel for the Claimant asked the Court to infer that the contents of the Defendant’s letter of 10th March 2006 must have been issued in response to the Notice to Quit so that the Claimant would in any event have been disingenuous in averring that she had never received Notice.

[24]In respect of the Defendant’s letter of 10th March 2006, Counsel for the Claimant contended that it contained a number of allegations which the Defendant under cross-examination admitted were untrue. This included the fact that Frank Greaves had promised to leave the Property to her and the fact that Mr Medford and her daughter had paid the taxes on the Property.

[25]Counsel for the Claimant’s submission is that none of the matters raised by the Defendant amount to or constitute a viable defence to the Claim. Having failed to dispute that she was a tenant of the Claimant and that she paid her rent from 1991 onwards, Counsel submitted that her claim for adverse possession of the Property could not be maintained.

Defendant’s Submissions

[26]The Claimant’s case was vigorously opposed by the Defendant who submitted that she has failed to prove valid legal title to the Property or to establish a legal right of possession. Indeed Counsel for the Claimant went further to describe the Claimant as a stranger to the disputed Property who lacks locus standi to make any claim for possession, far less a claim for arrears of rent and mesne profits. He submitted that the Claimant is neither the owner nor the landlord of the Property.

[27]The Defendant bases these general contentions on a number of grounds. First, the Defendant submitted that statutory declaration advanced in support of the Claimant’s case does not support a claim for title by adverse possession. In so contending, Counsel for the Defendant appears to have ignored the clear and unambiguous disavowal by the Claimant in which she renounced any further reliance on that document. The statutory declaration therefore does not form part of the Claimant’s case and it was not necessary for either the Defendant or the Court to address it.

[28]Counsel for the Defendant submitted that in order to succeed in her claim, the Claimant must demonstrate that she has been in peaceful uninterrupted possession of the Property for the prescribed legal period, exercising control of the Property to the exclusion of the landowner. He submitted that the evidence for the Claimant is that she has never resided or occupied that disputed Property. He noted that the Claimant migrated to the United States in 1991 and has continued to reside there. As such, he submitted that he has not established her case that she is the owner of the property.

[29]Counsel for the Defendant again ignored the Claimant’s clear indication that she does not have to prove that she is the fee simple owner of the Property. The Claimant states rather that her claim is based on the landlord and tenant relationship and that her acts of possession entitle her to advance and pursue this claim. The acts of possession specifically relied on by the Claimant include the collection of the rent following the death of Clarice Greaves in 1990 (she has relied on the judgment in Stephanie Seales v Leon Grant) and the levying of an increased rental in accordance with her authority as a landlord.

[30]Counsel for the Defendant submitted that the relationship of landlord and tenant as a rule arises when one party confers on another the right to the exclusive possession of land for a definite term. The owner of the freehold therefore grants a lesser estate than he possesses himself – a leasehold interest. He submitted that the rule that a tenant may not dispute his landlord’s title applies only to the title of the landlord who let him into possession. In that connection, he asked the Court to note that it was Frank Greaves rather than the Claimant who let the Defendant into possession under a lease. He further submitted that as the Claimant did not put the Defendant in possession of the Property, the Claimant therefore cannot take advantage of this rule.

[31]He also submitted that while payment of rent to an assignee of the reversion may be prima facie evidence of a claimant’s title, in the absence of fraud or misrepresentation, a tenant may deny the title of the assignee by demonstrating that such payment of rent was made ignorance of the true state of the title and that some third person is in fact the real assignee of the reversion.2

[32]On the facts of this case, Counsel noted that the Claimant had no lawful authority to act as landlord. In advancing this argument, he appeared to rely on the fact that the Property was owned by the deceased, Frank Greaves prior to his death. He referred the Court to the terms of the last Will and Testament of Frank Greaves in which he appointed two executors Elliott Gittens and Ernest Fenty and in which he devised the Property in the following way: “Lot No.3 if not sold before I die, at my death – it should be sold, all debts paid and the balance of money, if any, given to my wife Clarice Greaves.”

[33]This Will dated 1st September 1971 was eventually proved probated on 22nd July 2008 and administration was granted to Raymond Gittens, executor of the deceased, Elliott Gittens. Counsel for the Defendant argued that the Claimant has not challenged the validity of the Will and in fact, is a named beneficiary. However, the Will makes it clear that Lot No. 3, the subject Property, was not devised to her.

[34]Counsel submitted that the law is clear that on the death of the testator, the estate both real and personal devolves to his personal representatives. He cited section 29 of the Wills Act3 which provides as follows: “When any person has by his or her will, or any codicil thereto, appointed any person to be his or her executor, such executor shall be deemed to be a trustee for the persons (if any) who would be entitled to the estate under the statute of distributions in respect of any residue not expressly disposed of, unless it appears by the will or any codicil thereto that the person so appointed executor was intended to take the residue beneficially.”

[35]He further submitted that unlike an administrator who derives title from the grant of administration, an executor derives his authority from the Will. So that even prior to obtaining a grant of probate, an executor has the power to do all acts which are incidental to that office.4 2 Carlton v Bowcock (1884) 51 L.T. 659; Hindle v Hick Brothers Manufacturing Co [1947] 2 All E.R.825 3 Cap 340 of the Laws of Grenada 4 Re Stevens Cooke v Stevens [1897] 1 Ch. 422; Hewson v Shelly [1914] 2 Ch. 13

[36]He submitted that the appointed executors under Will who would be the proper persons to conduct all things related to the Deceased’s estate. It would therefore be the executor qua trustee (rather than the Claimant) who would be the lawful person to exercise the authority to sell or lease the Property. Within this context, it is particularly significant that during cross examination of the Claimant, Counsel for the Defendant was able to garner her admission that she was now aware that the Property has in fact been sold to the Defendant by someone other than herself.

[37]Counsel further submitted that the relationship between a landlord and tenant presupposes that the landlord holds the reversionary interest. He argued that in light of the Claimant’s concessions that the Property was not devised to her; that she is not the appointed executor of the Frank Greaves’ estate; that she is not a trustee; and that she does not otherwise advance that she is the fee simple owner of the Property, the Claimant cannot hold a reversionary interest in the Property and cannot advance her claim on the basis of a landlord and tenant relationship.

[38]The Defendant freely admitted that she ignored all the notices to quit served on her by the Claimant. She claims that she did so, on the basis that she did not recognize the Claimant as the owner of the Property. Indeed, during the course of the trial, it became clear that the Defendant sought to advance a claim of adverse possession. In support, she called two witnesses, Nathaniel Greaves and Evert Dowden, who both attested to her physical occupation on the Property from 1974 to the date of trial. The Defendant therefore submitted that the Claimant is not entitled to any of the relied claimed.

COURT’S ANALYSIS AND CONCLUSIONS

Claimant’s claim – Adverse Possession

[39]Although it is apparent that the Claimant does not advance her claim for relief on the basis of adverse possessory title, it appeared to the Court that in refuting the Claim, one of the alternate defences advanced by the Defendant was that she had been in possession of the Property from 1974 to the date of trial. It follows that this Court must consider whether the Defendant acquired possessory title to the Property by her peaceable, open and uninterrupted possession thereof for a period of twelve (12) years without the permission of the person lawfully entitled thereto.

[40]Although this is essentially a question of fact to be determined on the evidence, it is worthwhile to first review the applicable law.

[41]Section 4 of the Limitations of Actions Act Chapter 173 of the Revised Laws of Grenada provides as follows: “No person shall make an entry or distress, or bring an action to recover any land, but within twelve years next after the time at which the right to make the entry or distress, or to bring the action, has first accrued to some person through whom he or she claims, or, if the right has not accrued to any person through whom he or she claims, then within twelve years next after the time at which the right to make the entry or distress, or to bring the action, has first accrued to the person making or bringing it.” (Emphasis Mine)

[42]This section bars the bringing of an action to recover land within 12 years after the time at which the right to bring the action first accrued. This section must be read in conjunction with sections 5, 12 and 27 of the same Act which provide that: “s. 5 – In the construction of this Act, the right to make an entry or distress or to bring an action to recover any land shall be deemed to have first accrued at such time as is hereinafter mentioned, that is to say— (a) when the person claiming the land or some person through whom he or she claims has in respect of the estate or interest claimed been in possession or receipt of the profits of the land and while entitled thereto has been dispossessed or has discontinued the possession, then the right shall be deemed to have first accrued at the time of the dispossession or discontinuance of possession or at the last time at which any such profits were so received; (b) when the person claiming the land claims the estate or interest of some deceased person who has continued in such possession or receipt in respect of the same estate or interest until the time of his or her death, and has been the last person entitled to the estate or interest who has been in such possession or receipt, then the right shall be deemed to have first accrued at the time of such death; (c) when the person claiming the land claims in respect of an estate or interest in possession granted, appointed, or otherwise assured by an instrument other than a will, to him or her or some person through whom he or she claims by a person being in respect of the same estate or interest in the possession or receipt of the profits of the land, and no person entitled under the instrument has been in such possession or receipt, then the right shall be deemed to have first accrued at the time at which the person claiming as aforesaid, or the person through whom he or she claims, became entitled to such possession or receipt by virtue of the instrument; (d) when the estate or interest claimed has been an estate or interest in reversion or remainder or other future estate or interest, and no person has obtained the possession or receipt of the profits of the land, then the right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in possession; and (e) when the person claiming the land or the person through whom he or she claims has become entitled by reason of any forfeiture or breach of condition, then the right shall be deemed to have first accrued when the forfeiture was incurred or the condition was broken.” “s. 12- No person shall be deemed to have been in possession of any land within the meaning of this Act merely by reason of having made an entry thereon.” “s. 27- At the determination of the period limited by this Act to any person for making an entry or distress or bringing an action, the right and title of that person to the land for the recovery whereof the entry, distress, or action might have been made or brought within that period shall be extinguished.”

[43]In order to properly ground this defence, it is now clear that there are several requirements that a Defendant has to satisfy. These requirements have been repeatedly prescribed in local judicial case law which has been succinctly summarized by Price-Findlay J in George Donald Barclay and Others v Hilda Clement nee La Pierre5. At paragraphs 99 – 103 the learned Judge recaps the position in this way – “Firstly, possession has to be without the permission of the person with the proper title to the land. Any party asserting possessory title on that basis must therefore have entered the land without 5 GDAHCV2003/0177 at paragraph 83 permission from the beginning, or having entered with permission, such permission must have expired. Secondly, the party must demonstrate that he or she has sufficient exclusive occupation to constitute possession continuously for the prescribed period. Thirdly, such possession must be adverse to the possession of the holder of the paper title. The person claiming must exercise control of the land with the intention to exclude the owner of the land on his behalf and for his benefit. He must therefore demonstrate an intention to possess the land. Fourthly, the possession must be nec vi nec clam nec precario, that is, without force, openly and without permission. For a party to succeed in a defence of adverse possession, all the requisite elements must exist. Should any element be missing, the defence fails and adverse possession is not made out.”

[44]Where, as in this case, the Defendant went into possession of the Property with the permission of the owner and in furtherance to a lease agreement and where she purported to pay rental in consideration for her remaining in occupation, it is not open to the Defendant to advance a defence on the basis of adverse possession.

[45]Section 12 of the Limitation Act makes it abundantly clear that mere entry onto land without more will not avail a defendant. This position was further clarified by Alleyne, J. in Lett v Davis & Jones6 where he stated: “Where the occupier of premises is in possession by the owner’s leave, his occupation may not be an independent possession by him, but the possession of the owner himself, so that the owner is in possession through the occupier as his licensee.”

[46]The Defendant’s own unequivocal evidence is that she was put into possession of the Property in January 1974 by Frank Greaves, to whom she paid an annual rental of $40.00. These payments evidenced the relationship of landlord and tenant which persisted following the death and up to 2003. Indeed, the Defendant’s clear and unequivocal statement during cross-examination is that, “I was a tenant of Frank Greaves not Maude Campbell”. 6 GDAHCV 1994/0463 It follows that notwithstanding her intimation that she held possession with the intention of one day purchasing the property, it is abundantly clear that the Defendant held the Property not qua owner but qua lessee/tenant.

[47]Further, although the Defendant evidence in this regard was not unequivocal, it was also alleged in the letter dated 10th March 2006 that the Defendant’s daughter, Keron Regis paid the land taxes in respect of the Property over several years. Indeed, two demand notes (rather than receipts of payment) from the Inland Revenue Department were exhibited though not referred to during the trial. During cross examination however, the Defendant testified that she was unaware that her daughter had in fact paid taxes on the land.

[48]The utility of such evidence was the subject of judicial comment in the case of Magdelene Lendore v Winsford Frank and Another7. Mohammed J at page 12 of that judgment referenced the judgment of Price Findlay J in George Donald Barclay and Others v Hilda Clement nee La Pierre in which that learned Judge said: “…They have submitted that the Taxes Management Act, Cap 29 requires that the owners of land pay taxes for the acreage they occupy. But that Act also provides for tenants and persons who have a charge on taxed property to pay taxes and either deduct them from the rent or recover them from the owner. It stands to reason that paying land taxes is not necessarily an indication that they are the owners of that property.”

[49]Like Mohammed J, this Court fully endorses the comments of the learned Judge, that the payment of property taxes for land is not conclusive proof of possession.

[50]Having regard to the findings herein, the Court must therefore conclude that the Defendant cannot hope to rely on the statutory provisions laid out in the Limitation of Actions Act. The Court 7 GDAHCV 2006/0620 concludes that she has always held possession as a tenant and not as an owner with possessory title.8 Claimant’s claim qua Intended Purchaser of Property

[51]Indeed, that Court is not satisfied on the law and the evidence before it that there is any basis upon which the Claimant can advance any interest in the Property greater than a leasehold interest in the property. There can be no doubt (in light of the Defendant’s unequivocal evidence under cross examination that the agreement for sale reduced into writing) that no enforceable agreement for the sale of land persisted as at the date of the death of the testator Frank Greaves. The Court is persuaded by the submissions of Counsel for the Claimant that section 4 of the Real and Personal Property (Special Provisions) Act militates against the enforcement of any oral contract for the sale of land. Section 4 mandates that a contract for sale of land must be in writing and provides as follows: “No action shall be brought whereby to charge any person upon any contract for sale of lands, or any interest in or concerning them, unless the agreement upon which the action is brought, or some memorandum or note thereof, is in writing, and signed by the person to be charged therewith, or some other person thereunto by him or her lawfully authorised.”

[52]It follows that the Defendant’s failure to provide any written evidence of the purported agreement between the deceased Frank Greaves and herself or between Clarice Greaves ((assuming (which the Court does not accept) that she had any lawful authority to convey title)) and herself, means that she would have no legal or equitable fee simple interest in the Property, notwithstanding the apparent intention of Frank Greaves that the property be sold prior to or upon his death. 8 Section 2 of the Real and Personal Property (Special Provisions) Act provides that “ All leases, estates, interests of freehold, or terms of years, or any uncertain interest of, into, or out of any lands made or created by livery of seisin only, or by parole, and not put in writing and signed by the parties so making or creating the same, or their agents thereunto lawfully authorised by writing shall have the force and effect of leases or estates at will only, and shall not, either in law or equity, be deemed or taken to have any other or greater force or effect, any consideration for making any such parole leases or estates to the contrary notwithstanding; except nevertheless all leases not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landlord during the term shall amount to two third parts at the least of the full improved value of the thing demised.”

[53]The alternative rung and a crucial element of the Defendant’s opposition to the claim is her contention that the Claimant lacks the relevant locus standi to properly claim the relief sought. The Court must therefore now consider the final rung of the defence which has been advanced in answer to this claim.

Claimant’s claim qua Landlord/ Possessory Owner

[54]What is immediately clear from the evidence is that the Property was the subject matter of a devise under the Last Will and Testament of Frank Greaves, who purported to deal with it as an absolute owner. His instructions to his executors were that the Property be sold and proceeds of such sale be used to pay off the debts of the estate with any balance remaining to be paid to his wife, Clarice Greaves. It appears that his testamentary instructions were not carried out in the period immediately following his death or indeed during the lifetime of his wife Clarice.

[55]The evidence before the Court is that the Will was only probated in 2008, and that at that time the right to administer was vested in Raymond Gittens (who had obtain the grant qua executor of Elliott Gittens who along with Ernest Fenty had died leaving the estate of Frank Greaves un-administered). Notwithstanding this, there can be no doubt that the interest of the executors in the estate of the deceased, Frank Greaves (deriving from the Will) would vest in the executors from the moment of the testator’s death.9 In the normal course, the Court accepts that as at the date of his death, Frank Greaves reversionary interest in the Property would have vested in the two persons appointed under the Will.

[56]The Court therefore accepts Counsel for the Claimant’s submission that Clarice Greaves could not without more have hoped to legally transfer title to the Defendant prior to her death, notwithstanding that she was the wife of Frank Greaves and a named beneficiary under his Will. By dint of this argument, it is also clear that the Claimant could not be said to have obtained legal or absolute title to the Property following the death of Frank Greaves as she would have been in no stronger position than that the Deceased’s wife. 9 Woolley v Clark (1822) 5 B&A 744-746; Biles v Caesar [1957] 1 WLR 156

[57]Indeed, the evidence before the Court is that although the Claimant may have been raised by Frank and Clarice Greaves, she was not their lawful daughter or heir and would only have inherited through a specific devise expressly mentioned in the Will.

[58]The Claimant’s evidence also posits that having paid certain debts of the estate she is entitled to claim title to the subject Property. However, she advanced no legal basis to support this contention and the Court found no difficulty in dismissing this proposition.

[59]Notwithstanding the Claimant’s written evidence in this case, the legal submissions tendered on her behalf make it clear that she does not pretend to be the fee simple owner of the Property. In fact, Counsel for the Claimant suggested that in order to succeed, the Claimant does not have to prove that she is the fee simple owner of the land. Rather, she contended that she can properly advance her claim in landlord and tenant law on the basis that she has been in possession of the Property.

[60]The Claimant’s case is that in demanding and collecting rent in respect of the Property, she carried out acts of possession which ground her claim. She stated that she had been in possession and collecting rent not under the Will of Frank Greaves but in her own right (since the death of Clarice Greaves in 1990). She further relied on the fact that even after she increased the rent, the Defendant continued to pay the increased sum until 2002. This evidence was not denied or traversed by the Defendant during the course of the trial.

[61]Counsel for Claimant submitted that in those premises, the Defendant was in fact an attorned tenant who was estopped from denying the title of the Claimant. Counsel submitted that a tenancy by estoppel had been created which was binding on both Parties and which estopped the Defendant from setting up the Claimant’s lack of title as a defence to a breach of covenant.

[62]The common law in respect to leases prescribes that a tenancy maybe created by attornment, which is an acknowledgement by a person in occupation of property that he is the tenant of another person. The learned authors of Hill and Redman’s Landlord and Tenant Law have helpfully summarised the elements of such a tenancy at para [18] as follows: “Where a person is already in occupation of property, the relation of landlord and tenant may be established between another person and himself by attornment. The person who is in occupation attorns tenant, i.e. acknowledges that he is tenant to the person who is to be landlord. The essence of attornment is therefore, the acknowledgment or acceptance of the relation of landlord and tenant between two persons. The two essentials of attornment are (1) that the person attorning tenant is in occupation of the property and, (2) that the person attorning tenant agrees to the establishment of the relation of landlord and tenant with another person who becomes landlord.”

[63]The Claimant contends that when the Defendant agreed to pay the rental to her and/or her agent and further, when she agreed to pay the increased rental, she acknowledged the relationship of landlord and tenant and agreed to accept the Claimant as her landlord. Such attornment estopped the Defendant from disputing the Claimant’s title.

[64]Counsel for Claimant further submitted that an acknowledgement of the relation of landlord and tenant may also result in the creation of a tenancy by estoppel. The classic case on this subject is that of Industrial Properties (Barton Hill) Ltd v Associated Electrical Industries Ltd. [1977] QB 580 where Lord Denning at page 596 stated the basic principle as follows: “If a landlord lets a tenant into possession under a lease, then so long as the tenant remains in possession undisturbed by any adverse claim – then the tenant cannot dispute the landlord’s title.”

[65]In Cuthbertson v Irving10 the Court observed the following: “…if the lessor have no title, and the lessee be evicted by him who has title paramount, the lessee can plead this and establish a defence to any action brought against him…but …so long as the lessee continues in possession under the Lease, the law will not permit him to set up any defence in possession upon the fact that the lessor “nil habiut in tenementis”

[66]The common law now prescribes that the doctrine is not confined to leases by deed. It is also clear that the estoppel operates whether or not the tenant knew of the landlord’s lack of title and the 10 (1859) 4 H &N 742 at 758 inability to grant the lease. Edward H Lewis & Son Ltd. v Morelli [1948] 2 ALL ER 10201 at page 1024

[67]However, the Claimant has failed to recognise that the common law goes further and draws a clear distinction between an estoppel created where a tenant is actually put into possession of property by a landlord and an estoppel created by mere payment of rent. The position is most clearly set out in the case of Doe d. Harvey v. Francis.11

[68]This was a case for ejectment brought in respect of a stamping mill. The lessor proved payment of rent to him by the defendant and the delivery of a notice to quit signed by him. Counsel for Defendant proposed to put in evidence an answer of the lessor in which he had sworn that he had no legal interest in the mill, but had acted as agent for third parties. Counsel for the lessor objected on the basis that a tenant was estopped from disputing the title of a person to whom he had paid rent. The learned Patterson J. held – “…that where a tenancy was attempted to be established by mere evidence of payment of rent without any proof of an actual demise, or of the tenants having been let into possession by the person to whom the payment was made, evidence is always admissible on the part of the tenant to explain the payment of rent and to show on whose behalf such rent was received.”

[69]The Defendant was accordingly allowed to give evidence to show the real interest of the lessor. However, upon such evidence being given, it appeared to the learned judge that in point of fact, the defendant had taken the mills (of the lessor of the plaintiff) as his tenant and thereupon a verdict was directed for the lessor of the plaintiff.

[70]This position was also reflected in the Privy Council case of Joss v Stone12 . The arguments in that case were very similar to those advanced in the case at bar and at page 123 of the judgment, the Court observed: 11 (1837) 2 Mood & R 57 [1894] AC 122 “Nothing is distinctly alleged in support of the plaintiff’s title to the property. The learned counsel, who very strenuously argued the appeal on the plaintiff’s behalf, urged upon their Lordships the view that the plaintiff was not called upon to set out his title because his claim against the defendant was that he had let him into possession of the property as his tenant; that he had given the defendant notice to quit; that the defendant was no longer his tenant; and, therefore, that he was entitled to turn him out of the property by an action of ejectment, the defendant being estopped by his conduct in paying rent from denying the plaintiff’s title. The fact that a plaintiff in ejectment must establish his own title is clear, but the plaintiff in this case argues that he is relieved from the necessity of proving his title by reason of the alleged estoppel. This might be a very legitimate argument if the facts were sufficient to establish such a proposition. But it is enough to say for the purpose of this case that these facts are the very facts in dispute.

[71]The Judicial Committee held that the Court below was wrong in allowing summary judgment for the plaintiff. The Court concluded that where a plaintiff in ejectment proceedings claimed that the defendant was estopped by payment of rent from disputing his title, the defendant who alleged receipt of rent by the plaintiff as collector was entitled to defend on the merits in the ordinary course.

[72]So that while payment of rent to a person is prima facie evidence of a tenancy, the person paying such rent is not estopped from disputing the title of the person to whom such payment has been made. This is particularly so, where the lessor did not put the tenant into possession of the Property but rather took over the lease from an original lessor.13 In other words, where a claimant claims by a derivative title and the defendant has attorned to him, the defendant is not estopped from showing that the title is really not in the claimant but in some other person.14

[73]Payment of rent to a person or his agent may therefore be prima facie evidence of a tenancy, but the person so paying is not estopped from disputing the title of the person to whom such payment has been made. Such a tenant may show that the rent was paid by mistake15, or in consequence of a misrepresentation by the person receiving it16 or that the payment was made to an agent of a third person. However, his obligation does not stop there. In any such a case, he must also go further than this and prove a better title in someone else to receive the rent.17 13Harvey v Francis; Higginbotham v Barton (1840) 11 Ad & El 307 at 3013; Hitchings v Thompson (1850) 5 EXch 50; 14 Lodai Mollah v. Kally Dass Roy (1881) I.L.R. 8 Cal. 238 15 Higginbotham v Barton; Hitchings v Thompson 16 Carlton v. Bowcock and Another (1884) 51 L.T. Rep. Ns. 659; Hindle v Hick Bros Manufacturing CO. Ltd. [1947] 2 All ER 825 17 Cooper v Blandy (1843) 1 Bing NC 45;Carlton v. Bowcock and Another

[74]The common law position was appropriately summarised by Cave J in Carlton v. Bowcock and Another as follows: “…where a person claiming to be the assignee of the reversion receives rent from the tenant by fraud or misrepresentation, such payment is no evidence of title, but where there is no fraud or misrepresentation, such payment is prima facie evidence of title and the tenant can only defeat that title by showing that he paid the rent in ignorance of the true state of the title and that some third person is the real assignee of the reversion and entitled to maintain ejectment.”

[75]It is therefore clear to this Court that in the case of a tenant who has not been let into possession by the person to whom payment is made or has not continued in possession under the terms of a new tenancy, the position is different. On the uncontroverted facts of the case at bar, it follows that the Defendant is at liberty to set up such defences as are readily available to a person who has made a contract which he seeks to avoid. These include fraud, misrepresentation, or mistake.

[76]However, unless the Defendant can properly advance any one of these defences, she is estopped from disputing the Claimant’s title, and is bound by the terms of her implied contract. This Court must therefore consider the case which is advanced by the Defendant on her evidence.

[77]In her affidavit filed on 24th October 2007, the Defendant avers that” after the death of Clarice Greaves, I continued to pay rents to the Claimant under the mistaken belief that she was the sole beneficiary of the estate or Frank Greaves and she will carry out the wish of Frank Greaves, that after his death, the land that I am in possession of would be sold to me.” Her subsequent affidavit filed on 6th October 2010 states the position even stronger. At paragraph 8, she states “That after the death of the said Clarice Greaves, the Claimant collected rents from me under false pretence in that she represented herself to be the sole beneficiary of the estate of the late Frank Greaves and as a consequence would be in a position to complete the sale of Lot No. 3.

[78]It is not disputed by the Claimant either in her written or oral testimony that she represented that she was entitled to the property under the estate of Frank Greaves. Indeed during cross examination, the Claimant’s repeatedly asserted her belief that she was entitled to the Property by virtue of the Will of Frank Greaves and/or by virtue of the estate debts which she had paid.18 The Court has no doubt that following the death of Clarice Greaves; the Claimant would have made those same representations to the Defendant. The Defendant represented that on that basis she would have continued to pay rent to the Claimant and to her lawful agent even after such rent was increased in 1993 in the hopes that she would one day complete the sale and transfer title to the Property to her.

[79]However, it is perfectly clear to the Court that the Defendant had for some time been fully aware that there would have been some critical legal issues surrounding the title of Frank Greaves. Both of the Affidavits reflect that as far back as 1984, she attended law offices and was advised that there were problems with the title to the land and that if she purchased there would be difficulties to raise loans and other securities. In her second affidavit she goes further to say that she was advised that his widow Clarice Greaves “was not able to give me good and marketable title to the Property”.

[80]This position was further reinforced by the Defendant’s oral testimony on cross examination. She told the Court: “Clarice Greaves promised to sell the land for me. We went to Henry, Henry and Bristol. At the time Mr. Wilkinson was doing the case for the Claimant. Mr Wilkinson sent the paper to Mr Henry. Mr. Henry told Clarice and that if we bought the land, it would be a problem because Mr Frank Greaves did not have title to the land. So, if I bought the land from her I could not use the property to borrow money from the bank”

[81]In such circumstances, the Court has some difficulty in comprehending how the Defendant could have actually formed the view that the Claimant would have been in any better position than Frank Greaves to give her good title. In the Court’s view the Defendant must have known that if Frank Greaves and Clarice Greaves could not give her proper title on a sale for the Property that any person purporting to have inherited the Property could be in no better position to do so. What is clear is that she was content to remain in possession and paying rent in the hopes of one day 18 The Defendant did so notwithstanding the fact that she reviewed the terms of the will and admitted under oath that she was not named as executor neither was the property devised to her. acquiring ownership notwithstanding that it may well have been defective. She continued to pay rent to Clarice Greaves during her lifetime and after she died, she continued to pay rent to the Claimant when she would well know that they had no proper title to the Property.

[82]Whether the Claimant inherited the Property, was an executor to the estate or a residuary legatee, the Court does not accept that the Defendant was unaware that she could have no proper title to the Property.

[83]In fact, the Defendant later told the Court, “In 2003, when I stopped paying rent I was advised by my lawyer that Mr. Frank is not entitled to the land. I did not go to the executor, but I sent to survey….I surveyed in my own right as owner”

[84]The Court is therefore not satisfied that the Defendant has discharged her onus of proof to demonstrate that the rent was paid by mistake or ignorance of the true state of the title. The Court is of the view that the Defendant was well aware of condition of the title to the Property and therefore cannot purport the Claimant’s claim. The Court is of the view that the Claimant’s claim must succeed.

[85]Although mot strictly obliged to address it, the Court is also of the view that the defence would also fail on the second limb of proof prescribed in Carlton v Bowcock. The Defendant’s evidence before this Court is that she is the person with the better title to the Property. She asserts on the basis of her long possession of the Property and she secured the affidavits of two witnesses who testified that she has been in occupation of the Property since 1974. For the reasons that have already been indicated, the Court has dismissed the Defendant’s somewhat ill-fated claim of adverse possession. It follows that the Defendant would not able to dispute the Claim on that basis.

[86]In an apparent alternative claim advanced by Counsel in the written legal submissions, the Defendant sought to advance “a better title in someone else to receive the rent. At paragraphs 3.2.2, 3.2.3, 4.7 and 4.8 of the submissions, the Defendant contends that the executor of Frank Greaves (qua trustee) was the lawful person to act as lessor rather than the Claimant. Counsel for the Defendant submitted that immediately upon death of Frank Greaves, his estate both real and personal devolved to his executors who were named in his Will. It follows that qua trustee they would hold the reversionary interest in the Property and would be entitled to act as landlord.

[87]The Court is, however, cognisant that while the interest of an executor in the estate of a deceased vest in the executor from the moment of the testators death.19 The office of executor is a private one of trust so that a person nominated may refuse to act as long as he has not intermeddled.20 It is also clear that before an executor can advance a suit seeking possession or damages, he must first show that he has proved the Will by taking out a grant of probate. This clear principle of law is reflected in Comber’s Case (1721) 24 E.R. 605 and Humphrey’s v Ingledon 24 E.R 599.

[88]Having put no proof before the Court that the named executors took out a grant of probate or otherwise accepted their office, they could not without more have initiated suit. What is also clear is that no executor and indeed no third party have come forward to assert a claim adverse to that of the Claimant with by legal process or by the Defendant’s attornment.

[89]Although it is recorded as obiter, the Court acknowledges the caveat expressed by the English Court of Appeal in Hindle v Hicks Brothers Manufacturing Co. Ltd, that “Even assuming that counsel for the Defendants has established a prima facie case that legal title to the reversion is in one or other persons…it would not be sufficient compliance with the decision in Carlton v Bowcock to show that the estate may be in A of in B, neither of whom has made any kind of claim to that right of to the rent which would result therefrom.”

[90]This statement appears to have been later endorsed in Industrial Properties (Barton Hill) ltd. v Associated Electrical Industries in which the Court stated; 19 Wolley v Clarke (1822) 5 B and A 744 -746, 20 Cummins v Cummins (1845) 3J & L 64 “…short of eviction by title paramount, or its equivalent, however, the tenant is estopped from denying the title of the landlord. It is no good his saying: “the property does not belong to you but to a third person” unless that third person actually comes forward and successfully makes an adverse claim – by process in the courts or by the tenant’s attornment; or acknowledgement of it as by the tenant defending on an indemnity. If the third person for some reason or other makes no adverse claim or is debarred from making it, the tenant remains estopped from denying the landlord’s title. This is manifestly correct: for, without an adverse claim, it would mean that the tenant would be enabled to keep the property without paying any rent to anybody or performing any covenants. That cannot be right.”

[91]The Defendant having not satisfactorily met the second limb of his burden, the Court is therefore satisfied that she remains estopped from denying the Claimant’s claim. The fact of the payment of rent is prima facie evidence of proof of title in the Claimant who received the rent and having been unable to discount this fact by showing that she was acting in ignorance of the state of the title or that title was in some other person other than the persons to whom he paid the rent, she has no defence to the suit for rent and mesne profits or in ejectment. The Court is therefore obliged to enter judgment for the Claimant.

[92]The Court therefore orders and declares as follows: i. Judgment is entered for the Claimant. ii. The Defendant shall yield possession of the Property. iii. The Defendant do pay the Claimant the arrears of rent in the sum $400.00 from 2003 to 2006. iv. The Defendant will pay the Claimant mesne profits from 2007 until delivery of possession. v. The Defendant will pay the Claimant’s costs in the sum of $2500.00.

[93]Finally, the Court conveys its sincere regrets for the delay in rendering the judgment in this matter and must thank Counsel and the parties for their patience.

Vicki Ann Ellis

High Court Judge