UKPC 40
Privy Council Appeal No 0034 of 2010
Miss Carolyn Walton
Miss Hannah Ilett
(Instructed by E P Toothe & Associates)
James Dingemans QC
(Instructed by Charles Russell LLP)
James Dingemans QC
(Instructed by Charles Russell LLP)
The Quieting Titles Act 1959 and other statutory provisions
"(1) The court in investigating the title may receive and act upon any evidence that is received by the court on a question of title, or any other evidence, whether the evidence is or is not admissible in law, if the evidence satisfies the court of the truth of the facts intended to be established thereby.
(2) It shall not be necessary to require a title to be deduced for a longer period than is mentioned in subsection (4) of section 3 of the Conveyancing and Law of Property Act or to produce any evidence which by the Conveyancing and Law of Property Act is dispensed with as between vendor and purchaser, or to produce or account for the originals of any recorded deeds, documents or instruments, unless the court otherwise directs.
(3) The evidence may be by affidavit or orally or in any other manner or form satisfactory to the court."
"(3) Recitals, statements and description of facts, matters and parties contained in deeds, instruments, Acts or declarations, twenty years old at the date of the contract, shall, unless and except so far as they shall be proved to be inaccurate, be taken to be sufficient evidence of truth of such facts, matters and descriptions.
(4) A purchaser of land shall not be entitled to require a title to be deduced for a period of more than thirty years, or for a period extending further back than a grant or lease by the Crown or a certificate of title granted by the court in accordance with the provisions of the Quieting Titles Act, whichever period shall be the shorter."
The qualification to subsection (3) is important. There may be evidence which casts doubt on the correctness of a recital. A striking example of this is provided by the conveyance dated 15 January 1944 ("the 1944 conveyance") [337-342] which is crucial to the petitioners' claim. It recites that Charles Walter Brownrigg ("Mr Brownrigg") was at his death in 1933 "seised and possessed in fee simple of the hereditaments hereinafter described" and goes on to give particulars of four areas of land totalling 911 acres which were sold for £240. The adverse claimants' case is that Mr Brownrigg could claim only a squatter's title to some of that land, and that as regards the 15 acres and Freeman Hall South he had no title at all. The fact that the land changed hands at the rate of almost four acres to the pound tends to raise the question of whether the agreed purchase price reflected a discount for the vendors' doubtful title to part at least of what was sold. Under the mortgage of 13 July 1931 ("the 1931 mortgage") [321-325] Mr McKinney, through whom the petitioners seek to establish title, had accepted 100 acres in the Village Estate as security for advances of up to £200 to be made to Mr Brownrigg. It contained a recital of the possessory nature of the title which Mr Brownrigg claimed.
"After the commencement of this Act no person shall make an entry or distress or bring an action or suit, to recover any land or rent, but within twenty years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to some person through whom he claims; or if such right shall not have accrued to any person through whom he claims, then within twenty years next after the time at which the right to make such entry or distress, or to bring such action or suit, shall have first accrued to the person making or bringing the same."
As an exception, the period for claims by the Crown was sixty years under the Real Property Limitation (Crown) Act 1873, Chap 69.
The 1895 sale to the Sisal Company
"He outlived his entire first family. My father was born to his second wife when he was 78, and my father was 12 when he died at the age of 90."
"Also 85 acres of land situated as aforesaid being part of a tract of land containing 100 acres granted to the said William Edward Armbrister by the Crown by Letters Patent under the Great Seal of the said Bahama Islands dated the 9th day of October in the year of our Lord 1871 which said tract is bounded on the south-west by the sea on the south-east by land granted to Caroline Thurston on the north-west by a public road and on the north-east by land granted the said Caroline Thurston and a pond also."
The Crown grant is in evidence [217-219], but not its annexed plan, stated to have been prepared by the Surveyor General. Caroline Thurston was William Armbrister's mother . The adverse claimants' case is that William Armbrister decided to retain the 15 acres in his own personal ownership, that it is a coastal strip which appears in black on , that it devolved on Mrs Frances Armbrister, and that no one has ever acquired title to it by adverse possession. That case was rejected by the trial judge but upheld on appeal by the Court of Appeal.
"The plan, however, at page 237 of the Record (page 318 of the said Conveyance) is not an accurate depiction of the original and is irregular in that instead of the entire property being one solid colour the copy would suggest that the property comprises two colours with a dark colour at the bottom of the plan adjoining the sea which is not reflected either on the original of the Conveyance recorded in Book U9 or on the copy contained in the microfilm which according to the date stated thereon was copied on the 9th October, 1950."
The affidavit exhibits (as exhibit 3) a clear colour copy of plan "A" which shows the whole of the parcel in question coloured pink and annotated "Thos. Ross", without any acreage being mentioned. The four adjacent parcels (also coloured pink) are annotated as follows:
Caroline Thurston 160 as
Isaac R Tucker 80 as
John Tucker now W E Armbrister 400 as
W E Armbrister 221 as
Caroline Thurston 160 as
These can be readily identified as the first, second, third and fourth parcels in the 1895 conveyance.
"One undivided moiety or half part of All that tract of land situated as aforesaid containing 860 acres or thereabouts and known by the name of 'Freeman Hall' and 'John M Tatnall' which said tract is bounded as follows on the north by land granted to Jane Wells, I Armbrister and M Lundie on the east by the sea on the south by land granted Archibald Mackey and James Hepburn and on the west by land granted James Hepburn, Peter Curtis and William Wells."
This interest was the subject of some confusion at the trial, but William Armbrister's title to it is well documented. It came to him by purchase from three sisters in another branch of the Armbrister family, Mrs Mary Sophia Cooke, Mrs Emma Eliza Couteau and Mrs Laura Ann Peterson . They and their husbands joined in conveying their one-sixth legal interests to trustees for sale [223-230, recitals] and the trustees sold the undivided half share to William Armbrister for £62.10.0 by a conveyance dated 25 August 1873 [223-230]. After the 1895 conveyance the partition between the Sisal Company and the owners of the other undivided share (which belonged to the heirs of a fourth sister, Mrs Julia Ferguson ) was effected by deeds dated 21 February 1899 and 4 May 1900 [296-301].
The failure of the Sisal Company
"The Company's business has been at a standstill. No balance sheet has been prepared and no auditors appointed for some years."
The reverter point: introduction
"But the body politic may also itself be dissolved in several ways; which dissolution is the civil death of the corporation: and in this case their lands and tenements shall revert to the person, or his heirs, who granted them to the corporation, for the law doth annex a condition to every such grant, that if the corporation be dissolved, the grantor shall have the lands again, because the cause of the grant faileth. The grant is indeed only during the life of the corporation, which may endure for ever: but, when that life is determined by the dissolution of the body politic, the grantor takes it back by reversion, as in the case of every other grant for life."
"Suffice it to say that at the time when the company was defunct and struck off the register there was no legal estate vested in the company which could have reverted to William Edward Armbrister even if the doctrine of reverter was in existence in the Bahama Islands."
Neither of the courts below seems to have been referred to the Declaratory Act of 1799, Ch 4 or to the Escheat Act of 1871, Ch 141.
"In default of any person taking an absolute interest under the foregoing provisions, the residuary estate of the intestate shall belong to the Crown or to the Duchy of Lancaster or to the Duke of Cornwall for the time being, as the case may be, as bona vacantia, and in lieu of any right to escheat."
This is followed by a statutory recognition that provision may be made, as a matter of Crown discretion, for the intestate's dependants. In this way intestate succession to real and personal property was at last put on the same footing. Both types of property were treated as going to the Crown as bona vacantia, a term previously used only in relation to personal property (there is a full discussion of the old law as to personal property in Dyke v Walford (1846) 5 Moo PCC 434). The distinction between the Crown's "seignorial" and "prerogatival" rights (mentioned in a reporter's note to Middleton v Spier (1783) 1 Bro CC 201, 205) has for most practical purposes disappeared.
The English authorities on the reverter point
"The Legislature would never have bestowed on the Court a power to declare the dissolution void, without imposing terms, as by the section it certainly is empowered to do, if the effect of this order of avoidance might be to undo the reversion of freeholds to an original grantor or the acceleration of a reversioner's immediate title to leaseholds in the case of lands accidentally undisposed of in the winding up (Co. Litt. 136; Hastings Corporation v Letton; In re Woking Urban Council (Basingstoke Canal) Act, 1911; In re Albert Road, Norwood; yet such would be the effect of the construction contended for, with a consequent avoidance of all dispositions made by such grantor or reversioner in favour of third parties, wholly innocent of any irregularity."
"This makes it difficult to say that the section is merely declaratory of already existing law; and the Court cannot be asked to say that Hastings Corporation v Letton was wrongly decided, as it was cited without disapproval in Morris v Harris."
The Court of Appeal was not however inhibited in its comments on the case. The Master of the Rolls commented in the course of the respondents' arguments (p 38),
"You can make very little of that case. I think we had better leave it where it is."
In his judgment (p 47) he referred to it as irrelevant. Lawrence LJ went a good deal further (pp 53-55), agreeing with academic criticism of the whole of the Blackstone principle, and not merely its application to leasehold property. Romer LJ discussed the point at some length (pp 60-63) and seems to have seen strength in the criticisms, but expressed no definite conclusion. He did point out (p 62) the practical implications for commercial companies:
"In the case of a grant of the fee to a trading corporation the inconvenience of the doctrine stated by Blackstone has been felt for a long time. If, for instance, a conveyance of land be made to a company formed for the purpose of developing and turning it to account, the fact, if fact it be, that on the dissolution of the company, which would probably take place as soon as the land had all been disposed of to purchasers, the land would revert to the grantors would seriously prejudice the sale of the land to the best advantage."
The reverter point: conclusion
"And hence it appears how injurious, as well to private as public rights, those statutes were, which vested in King Henry VIII, instead of the heirs of the founder, the lands of the dissolved monasteries."
Some commercial corporations did indeed exist in Coke's time. The Muscovy Company was incorporated by Royal Charter in 1555, followed by the Levant Company (which last only seven years) in 1581, the East India Company in 1600 and the Hudson's Bay Company in 1670. But there is no sign that Coke or Blackstone had these in mind. The Royal Charters gave the companies a monopoly of trading in different parts of the world, and title to their lands would not depend on English law until they had come under English sovereignty.
"(Except so much thereof as hath relation to the ancient feudal tenures, to outlawries in civil suits, to the wager of law or of batail, appeals of felony, writs of attaint and ecclesiastical matters)".
This exception is a double-edged sword for the parties, which may be why both sides were reluctant to make much of it. It is hard to assess the intended scope of the reference to "the ancient feudal tenures", especially as section 4 preserves all statutory provisions relating to the prerogatives of the Crown. It seems unlikely that the exception in section 2 was intended to displace the basic principle that under the common law of England all land is held from the Crown. It seems more likely that it was intended to exclude the feudal services that were incidents of tenure, such as knight service and frankalmoign; and perhaps also subinfeudation, which in England was permissible at common law but prohibited after 1290 by the statute Quia Emptores. The second relevant statute, the Escheat Act of 1871, tends to reinforce that view, since in section 2(1) it defines "escheat" as including all property which falls to the Crown in default of an heir or next-of-kin. It seems to have assimilated intestate succession to real and personal property, as English law did in 1925, but using the old term of escheat rather than the term bona vacantia used in the English statutes. The Escheat Act of 1871 does not appear to have any direct application to the property of corporations.
"An equity of redemption has always been considered as an estate in the land, for it may be devised, granted, or entailed with remainders, and such entail and remainders may be barred by a fine and recovery, and therefore cannot be considered as a mere right only, but such an estate whereof there may be a seisin; the person therefore entitled to the equity of redemption is considered as the owner of the land, and a mortgage in fee is considered as personal assets."
"A similar situation exists in this case, and, as the Petition was filed in 1982 and the relevant government officer was served more than 20 years ago, I am able to consider this case without being concerned with a possible interest in the Crown."
Osadebay JA made the same point in para 85 of his judgment in the Court of Appeal.
The 15 acres
"It was said, as long ago as 1969, by no less an authority than Megarry J in Neilson v Poole (1969) 20 P & CR 909, 912, that the then modern tendency was towards admitting evidence in boundary disputes and assessing the weight of that evidence rather than excluding it. That tendency has, in my experience, not diminished in the intervening years."
"The principle may be stated thus: if the terms of the transfer clearly defined the land or interest transferred extrinsic evidence is not admissible to contradict the transfer. In such a case, if the transfer does not truly express the bargain between vendor and purchaser, the only remedy is by way of rectification of the transfer. But, if the terms of the transfer do not clearly define the land or interest transferred, then extrinsic evidence is admissible so that the court may (to use the words of Lord Parker in Eastwood v Ashton at  AC 900 p 913) 'do the best it can to arrive at the true meaning of the parties upon a fair construction of the language used.'"
"Yes, keenly. We had obtained some of the maps, the old maps of Cat Island that show all the original Crown grants and she had diligently gone and outlined every piece of property that our family was interested in. And I could bring the map, I could bring it and show it to you if you like. She diligently went over all the documents and she would sit over it for hours to make sure she had these outlines correct."
Unfortunately he had not brought the map to court. But later in his evidence in chief there is a passage [458-459] that addresses the location of the fifteen-acres:
"Q. Is it accurate that he sold the entirety of the Village Estate? Did he keep some of it back, or was this something which he got rid of, as far as you are aware, at that time that he sold it?
A. I was under the impression that he kept a piece of it. He did keep a 15 acre tract that was on the beach specifically.
Q. When you say 'on the beach', are we talking about a beach?
A. I'm sorry. It's an iron stone shoreline. It was 15-acres long the shoreline.
Q. And has that actually been surveyed out?
A. No, it has not been surveyed out.
Q. OK. Do you know where that is?
There was then a digression about papers being lost in a serious fire in 1975 but then the witness was asked about a plan:
"Q. Right. This is a plan that was surveyed at the instance of Mr Herbert McKinney. I am showing it to you only to ask you, whether or not on this plan
THE COURT: That's the plan filed in the action?"
MR TOOTHE: Yes, My Lady, the 15 acres is shown.
THE WITNESS: The 15 acres would be in this vicinity [indicating].
THE COURT: Here?
THE WITNESS: Yes, my Lady [indicating]".
"Q. Would he be interested in land on the beach from an aesthetic point of view or from a point of view of his ability to farm it?
A. From what I can see from where his house was located, I think he was there because it was up over there, overlooking the sea; I suspect he was trying to catch the breeze as much as possible.
Q. How far was your grandfather's house from the sea?
A. I think about maybe 300 feet, if that."
Issues as to possessory title: introductory
"In support of their possessory title, the Adverse Claimants provided viva voce evidence of Anthony Frederik Armbrister, Eugenie Cadet and a Mr Poitier. Unfortunately I did not find that their evidence was sufficiently strong to persuade the Court that the Armbristers had by their adverse possession ousted the documentary title established by the Petitioners.
[Citation from Re Knowles]
The evidence of the witnesses on behalf of the Adverse Claimants fall far short of the standard of proof as stated by Smith J and Scarr J. There was no specific delineation of the property adversely possessed and no indication of the period of time within which the dispossession would have occurred."
"The trial judge did not believe the evidence of the appellants and their witnesses.
I find no reason to interfere with the finding of the trial judge on this issue."
The trial judge did not say that she disbelieved the witnesses, and she erred in supposing that the petitioners had a sound documentary title, since the 1944 conveyance, and before it the 1931 mortgage, have been shown to be based on a dubious possessory title claimed by Mr Brownrigg.
Issues as to possessory title: geographical background
"I saw the Village Estate which appeared to me to have little or no cultivation and I met the woman who was described to me as 'Celly Rolle'. Celly Rolle was living in a small house in the Village yard. I told her that she would have to move as she was on the land that belonged to Cyril Armbrister. Mrs Rolle threatened to attack me with a cutlass, however when I returned to the Bight in 1939 Mrs Rolle had moved and I was informed by Commissioner Wells that he had instructed her to leave the Village as she was trespassing on Armbrister property. At the same time that I met Celly Rolle I also walked up to the main house of the Village Estate (which was then in a dilapidated state). I could see what appeared to me to be the remains of a beautiful kitchen chimney which was some little way away from the main dwellings. The house where I met Celly Rolle was a considerable distance away from the main house in an area that people on Cat Island call the Village Yard which was comprised of small dwelling houses, at least two of which were constructed of stone."
"A. Freeman Hall Estate, it's a lovely piece of property. It rises from the beach up to a hilltop.
Q. Is it a beach?
A. Yes, it is. The piece of property that we have there is about 5,000 feet give or take a few feet. 5,000 feet of ocean front. Most of that, there is probably 3,000 to 3,500 feet of beach and 1,500 feet of rocky shoreline. It has a small rise off the beach, then it drops down to a small valley back there, which there should be lots of fresh water in that area. Then it rises to a ridge toward the back of the property. That's probably close to 100 feet high. So the elevations are quite nice."
His evidence was that there was little farming on Freeman Hall South . Mitchel Poitier, however, one of the co-owners of the northern part of Freeman Hall, said [498-499] that farming was done on both sides of the property, but that there had been no farming on either side for the last five years. Some of the affidavits referred to farming being carried on Freeman Hall South at different times.
Issues as to possessory title: biographical matters
The evidence as to possession: introduction
"During our absence from Cat Island and whilst my husband and even while my husband and I lived at the Bight, Beatrice Gilbert was our Chief Overseer. When farmers brought produce to us direct as 'shares' we accepted the same, however our objective in having overseers was to ensure that the land was kept clean and that our goats and sheep did not run wild destroying growing crops. This policy is maintained by me today and has been my policy throughout. It is also the policy of my son Anthony who lives permanently on the island of Cat Island where he is raising his family."
The 1931 mortgage and the 1944 conveyance
The evidence as to possession: Freeman Hall South
"Tenants worked the land for the Armbrister family and we also worked the land ourselves. We collected thirds from all the tenants including Mr Sam Cleare who died approximately six years ago aged 105 years. We also collected thirds from Freddie Rolle, Louisa Armbrister and Celeste Armbrister. These persons are now all dead.
My husband collected thirds from tenants on the farms up until his death in 1945. After 1945 the Armbristers appointed other Overlookers.
I remember Mr Brownrigg who I understand worked for the Sisal Company. Mr Brownrigg left Cat Island some years before 1920.
I doubt that Mr Brownrigg ever knew of Freeman Hall because this property was out in the middle of the land.
My husband and I built a shack at Freeman Hall for overnight shelter because of its distance from the settlement."
Effie Armbrister may have been the person referred to by another deponent as "Baby Armbrister".
"a woman known as 'Baby Armbrister' collected from the thirds from the tenants of Freeman Hall and I collected from her for the estate barn which was situated in the Armbrister yard at The Bight, Cat Island."
"Q. Do you know anything about the Freeman Hall Estate on Cat Island?
A. Yes, the Freeman Hall Estate, we had a lot of people working on there. And James Rolle was the overseer
A. - for there: and after James Rolle, it was Naman Rolle.
A. And after Naman Rolle died, well, we didn't had nobody else.
Q. You didn't have anybody else?
Q. They didn't appoint anybody else?
A. Nobody else Oh, yes, yes, T. Strappe, Theophilus Strappe was one of the overseers too.
. . .
Q. And the Rolles and Mr Theophilus Strappe, who were they overseers for?
A. They used to oversee for Tony I mean Tony Mother, the Daddy, they used to overseer for her.
A. All of them used to oversee for that.
Q. How did you know that?
A. Because I used to see them take the crop and carry it in. And my daddy used to help too when Mr Rolle my daddy used to help with his horse, take the crop and carry it down to the Village. I used to work on the Village too."
Her references to crops going to "where Celly was" was taken up in cross-examination [488-489] but she insisted that it was for the Armbrister land. She said that she still went to Freeman Hall in her truck, but that the road was bad.
"Q And, of course, during this period of time what were you doing on Cat Island?
A. Trying to create a life that they could live without me there. I had left college. I had completed one year of college and the family had come down here to retire on Cat Island, to live on Cat Island. There was no power, there was no running water, there was no services available there, so I kept trying to figure out how to create things for them to live without having me there. After a couple of years trying this I realised it wasn't going to happen."
"It's a bulldozer road. No, there's nothing particularly noteworthy about it, it's just a track road or a bulldozer road that goes from the King's Highway or Queen's Highway from the beach across to the beach at Freeman Hall."
"The question what acts constitute a sufficient degree of exclusive physical control must depend on the circumstances, in particular the nature of the land and the manner in which land of that nature is commonly used or enjoyed . . . Everything must depend on the particular circumstances, but broadly, I think what must be shown as constituting factual possession is that the alleged possessor had been dealing with the land in question as an occupying owner might have been expected to deal with it and that no one else has done so."
The evidence as to possession: the 15 ares
"But he certainly couldn't have squatted on both Freeman Hall and Village. That's about 900 acres. Tough to do that."