Alfred Christopher Objectors/Appellants Ishma Christopher v Carmen Smith (Executor of the Estate of Joseph Josiah Smith Deseased) Claimant/Respondent

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: DAVIS, C.J.:
• Judgment Date: 05 December 1975
• Judgment citation (vLex): [1975] ECSC J1205-2
• Docket Number: CIVIL APPEAL NO. 3 of 1974
• Date: 05 December 1975

[1975] ECSC J1205-2

IN THE COURT OF APPEAL

Before:

The Honourable the Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Peterkin

CIVIL APPEAL NO. 3 of 1974

Between:

Alfred Christopher

Objectors/Appellants

Ishma Christopher

and

Carmen Smith

(Executor of the Estate of Joseph Josiah Smith Deseased)

Claimant/Respondent

Appearances:

Mc W. Todman for Appellants

J. S. Archibald for Respondent

DAVIS, C.J.:

1 This appeal arises from a decision of the Adjudication Officer dated the 4th day of April, 1973, in which he awarded the lands conveyed in Deed No. 66 of 1947 by Timothy Horatio Christopher as vendor to Joseph Josiah Smith as purchaser, to the Respondent.

2 The sole issue in this appeal is whether upon a proper interpretation of this Deed the vendor intended to convey and did convey the entire portion of land owned by him by virtue of Deed no. 62 of 1947 and more properly described in Deed No. 8 of 1938.

3 In the Deed No. 8 of 1938 the land is described as "All that certain lot or parcel of land situated lying and being in the said Macnamara Estate on the sea side of the Public Road called and known as the seashore or bay lot and bounded on the North by the sea, on the South by the Public Road, on the East by a line running from the public well called the Macnamara well in the public road northwardly to the sea and on the West by the seetshore lands of Government Property called and known as Poorhouse land.

4 In the Deed No. 66 of 1947 the land conveyed is described as follows:

"….. All that certain lot piece or parcel of land situated and lying at Macnamara Estate, in the island of Tortola, British Virgin Islands, designated as a House lot and being free from all incumbrances as per Deed No. 62 of 1947 bounded as follows:

On the North by the sea, On the East by the Public Road, on the West by the Public Road and on the South by the Public Road….."

5 The contention of Counsel for the Appellant is that the intention of the Vendor in Deed No. 66 of 1947 was to convey only a portion of the land and that this can be gathered from the words used in the deed. In support of his contention he pointed out that the words "designated as a house lot" are used in Deed No. 66 of 1947 in contra distinction to the words used in Deed No. 8 of 1938 namely "All that certain lot or parcel of land". My view is that if the vendor intended to convey only a portion of the land he would have said so in simple terms such as "All that lot of land being a portion of lands owned by me etc." Moreover, if Counsel's contention is correct, one would expect that the Deed No. 66 of 1947 would show that the Western boundary of the land conveyed to Smith would be "other lands of the vendor". Clearly, the words "by the Public Road" is a misdescription of the Western boundary and this fact is agreed to by both Counsel.

6 The Adjudication Officer concluded from the evidence he heard as to user and from his interpretation of all the Deeds exhibited in the dispute that the land belonged to the estate of Joseph Josiah Smith deceased and recorded it in the name of Carmen Smith as executrix of the estate of the late Joseph Josiah Smith and declared her title thereto as absolute. While I do not agree with all of his reasons for arriving at his decision I think his conclusion is correct. I would therefore dismiss the Appeal with costs to be taxed.

7 Maurice Davis

8 (Chief Justice)

9 I agree.

10 E. L. St. Bernard

11 (Justice of Appeal)

12 I also agree.

13 N. A. Peterkin

14 (Justice of Appeal)

[1975] ECSC J1205-2

IN THE COURT OF APPEAL

Before:

The Honourable the Chief Justice

The Honourable Mr. Justice St. Bernard

The Honourable Mr. Justice Peterkin

CIVIL APPEAL NO. 3 of 1974

Between:

Alfred Christopher

Objectors/Appellants

Ishma...