Brewley et Al v Daley

• Jurisdiction: British Virgin Islands
• Court: High Court (British Virgin Islands)
• Judge: Bertrand, J.
• Judgment Date: 21 December 1987
• Neutral Citation: VG 1987 HC 3
• Docket Number: No. 59 of 1984
• Date: 21 December 1987

High Court

Judge (s): Bertrand, J.

No. 59 of 1984

Brewley et al

and

Daley

Appearances:

Mr. Bennett for Plaintiffs

Mr. Archibald Q.C. with Mrs. Creque for Defendant

Real property - Claim for possession of land on which dwelling house stands — Land was sold to the defendant resulting in a contract for sale of the equity in the land — The deceased was bound in equity to execute an instrument of transfer in favour of the defendant — The plaintiffs, as personal representatives of the deceased's estate, were obliged to execute the instrument of transfer to the defendant — Judgment for the defendant.

Bertrand, J.

1 The Plaintiffs as Personal Representatives of Olva Brawley deceased are claiming possession of a parcel of land on which the dwelling house of the Defendant now stands. According to the evidence, the area of that parcel of land was surveyed in 1983 — Exhibit “ C.B.3” found to be 0.21 acres. That parcel forms part of Parcel 7 in Block 3136B registered in the Road Town Registration Section, containing 91/2 acres belonging to Olva Brewley deceased.

2 The Plaintiffs admitted that the deceased Olva Brewley shortly before his death on the 16 ^th May, 1975 agreed to transfer a part of that 9 ¹/₂ acres to one Arthur Roberts in partial settlement of a debt of $1700.00 owed to Roberts by one of the sons of the said deceased. Almond Brewley, but pleaded that no specific portion was selected, and there has been no registration to the transfer of that portion of land 0.21 acres, to the Defendant. He latter claim, the Defendant has admitted. They also admitted that the defendant built his house on the 0.21 acres, which building was started early in 1975, and, according to the defendant, completed in 1977.

3 The Plaintiffs obtained a 1983 valuation of the 0.21 acres i.e. $9 500.00. They added the cost of the survey $400.00 making a total of $9 900.00. They claimed that they offered to transfer that portion of land to the defendant at a price of $9 900.00 but giving credit to the defendant for the debt of Almond Brewley. No reply was received from the defendant. He was therefore given notice to quit the portion of land. The notice was not produced in evidence. The Plaintiffs are now claiming possession of the said 0.21 acres and damages of $8 200.00 plus interest from May 1975 at 6% p.a. and costs. The Plaintiff Carl Brewley said in evidence:

I got a surveyor, had the land surveyed to be sold to the Defendant to make him pay for the land. The purpose was to get the value. I offered to sell the land to the Defendant at a price of $9 500.00. I was not paid any money”.

4 The Defendant in his defence claims he bought the land the subject of this issue from Arthur Roberts early in 1975 and paid $1 800.00 for it. It can be said at the outset that the Plaintiffs have admitted at paragraph 2 of the statement of claim that Arthur Roberts was to be the registered owner of the said portion of land part of parcel No. 7 which contains 9 ¹/₂ acres. They do not deny that Olva Brewley deceased paid the debt of $1 700.00 by agreeing to transfer a part of the said 9 ¹/₂ acres to Arthur Roberts. By paragraph 9 of the Plaintiffs' statement of claim they have also agreed that the Defendant could become the registered owner of that said portion providing, however, that he pays more for the land.

5 The Defendant's evidence is that when he paid Arthur Roberts for the land in January, 1975 he knew him to be the sole owner. He inquired from him as to his title but Roberts could not, however, execute an instrument of transfer in his favour since Olva Brewley deceased had not yet executed an instrument of transfer of the said land to him. The Defendant said that to his knowledge Roberts was the owner of the said portion of land, that he never recognized Olva Brewley to be the owner. And because he wanted a deed for the land he reported the sale to Olva Brewley. He showed Olva Brewley the receipt, and Olva Brewley showed him where the land was and promised to execute a transfer of the land in his favour. The receipt, Daley said, was witnessed by two persons but he misplaced it and is not now in possession of that receipt. Daley was never cross-examined on the receipt or its non-production. He continues, that where Olva Brewley pointed out the land to him was the same boundaries that Arthur Roberts showed him. He then proceeded to clear the land to build his house, and in May 1975 he built the foundation; and with the permission of Olva Brewley deceased he cut a driveway on another part of the land, Parcel 7 belonging to Olva Brewley deceased, from the Main Public Road. This driveway he said leads to his house. The Defendant continued building his house, but Olva Brewley deceased died in May 1975 before the house was completed and before the said Olva Brewley deceased could execute the instrument of transfer in his favour. He completed the house, nevertheless, in 1977 and moved into the house with his wife and family and they have lived there on the land ever since.

6 It was in July 1982 that the Plaintiffs questioned the right of the Defendant to be on the land. They made searches in the Land Registry and subsequently, Daley received Exhibit “ C.B.5” letter dated 30 ^th July, 1982 from Mc W. Todman & Co. a firm of Solicitors inquiring of the nature of the Defendant's interest in the land on which his dwelling house stands. It must be noted that it was not alleged that he was trespassing or that he was unlawfully on the land.

7 The Defendant admitted he was asked to pay $8 200 for the land, but he refused since he said he had already paid for the land and was not paying for it twice. He, however, did not reply to Exhibit “ C.B.3.”

8 The Defendant therefore, claims that he is entitled to receive from the Personal Representatives of Olva Brewley deceased, an instrument of transfer in respect of the said portion of land on which his dwelling house stands and which is part o the Estate of Olva Brewley deceased. He is also asking that the road which he cut as a driveway from the Main Public Road to his house be a right of way for his use and benefit.

9 It is agreed by both parties that the portion of land claimed by the Defendant comprises 0.21 acres Exhibit “ C.B.3.” There is no contrary evidence that the Defendant bought the land before the death of Olva Brewley, and Carl Brewley said in evidence that before his father's death he saw a driveway cut already and he has had no objection to the Defendant using it. He also saw the Defendant start a building on the said land, but at the time he could do nothing. To use his own words, he said “In 1975 I was not in power to do anything”. He received Letters of Administration in the estate of Olva Brewley deceased in December 1976, Exhibit “ C.B.1” and on 4 ^th August, 1977 he and Delita Brewley the widow of Olva Brewley deceased as Personal Representatives of the said deceased were registered as owners of 9 ¹/₂ acres of land part of the estate of Olva Brewley deceased — Exhibit “F.D.1”. In 1978 Carl Brewley left Tortola to live in St. Thomas but he came back every now and then to visit. The Defendant had already completed his house before he left. Letters of Administration were already obtained by the Personal Representatives. Nothing was said to the Defendant.

10 From the Plaintiff's evidence Carl Brewley did not know first hand of the transaction between Olva Brewley and Arthur Roberts and later the Defendant. But the Plaintiffs admitted at paragraph 2 of their statement of claim that Olva Brewley “had agreed to transfer a part of the said parcel to one Arthur Roberts in partial settlement of a debt of $1 700.00 owed to the said Roberts by Almond Brewley a son of the said Olva Brewley”.

11 There has been no evidence from the Plaintiffs to support paragraphs 3, 4 and 6 of the statement of claim. Regarding paragraph 3 of the statement of claim there was evidence from the Defendant that Olva Brewley pointed out to him the land which he gave to Arthur Roberts and there is also evidence from the Defendant that he bought the property from Roberts.

12 Delita Brewley the other Plaintiff was not called to give evidence. According to the witness Carl Brewley she is old and infirm, the Court therefore, had only the evidence of Carl Brewley before it.

13 There is no evidence that Olva Brewley deceased questioned the right of the Defendant to be on the land. There is clear inference, however, that the Plaintiffs only contention in this matter is that the Defendant should pay more for the land. But they are asking for possession of the said 0.21 acres. They have not proved that they have suffered damages as a result of the Defendant being in possession of the land, nor have they brought any evidence of having suffered damage.

14 ...