Muduro v Skeleton

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Davis, C.J.,St. Bernard, J.A.,Peterkin, J.A.
• Judgment Date: 14 February 1977
• Neutral Citation: VG 1977 CA 8
• Docket Number: Civil Appeal No. 23 of 1973
• Date: 14 February 1977

Court of Appeal

Davis, C.J.; St. Bernard, J.A.; Peterkin, J.A.

Civil Appeal No. 23 of 1973

Muduro

and

Skeleton

Appearances:

F. Kelsick and L.W. Barker for the appellant

J. S. Archibald for the respondents 1, 2 & 3 other respondents absent.

Real Property - Land — Title

Trust and Trustees

JUDGMENT OF THE COURT:

1 These are two appeals arising out of the decision of the Adjudication Officer in a dispute over land held in trust under a deed dated the 4th day of September, 1906. The appeals are heard together by consent.

2 The deed conveyed the entire unsold portion of a parcel of land known as Fish Bay Estate estimated to be about 56 acres to Joseph Skelton in trust for the use of the children of Roceita Maduro in the following proportion – John James Maduro four acres, Richard Maduro six acres, Ellen Eliza Maduro six acres, Ann Elizabeth Maduro four acres, Claudius Waldemor Skelton eight acres, Emma Clothelda Skelton seven acres, and Alice Lutecia Skelton seven acres

3 When totalled the number of acres of the unsold portion gives the figure of 42 acres. The trust deed, however, mentions 43 acres. This may be an error as the sold portion of Fish Bay Estate was 14 acres.

4 Joseph Skelton carried out his duties as trustee until his death in 1948. James Skelton the lawful son of Joseph refused to accept the responsibility as trustee and some of the beneficiaries occupied various portions of the land. The Adjudication Officer found that the respondent Skelton undertook to carry out the task as trustee. This finding, however, appears to be unreasonable as in my view, there is insufficient evidence to support such a finding. The respondent bought the shares of some of the beneficiaries and that of is mother Ellen Eliza Maduro. Joseph Skelton, his father also gave him 14 acres by deed No. 55 of 1943. This land was found not to be trust property by the Adjudication Officer and an absolute title was granted to a him.

5 The Adjudication Officer stated that in addition to this parcel the respondent Skelton was entitled as a beneficiary under the trust instrument No. 35 of 1906 and granted to him an additional 15.75 acres of land which was to include a parcel known as the Bay Lot. Skelton's claim was for approximately 35 acres of land which he claimed by virtue of six deeds four of which were executed by the beneficiaries under the trust. He did not claim however by deed 5 of 1943 under which the 14 acres were conveyed to him by his father Joseph Skelton. The six deeds by which he claimed gave a total acreage of 25 acres. Although counsel for the appellant contended the conveyances granted to the respondent Skelton by the beneficiaries were not valid since the Adjudication Officer held he was trustee there was no contention that any other person was entitled to the 25 acres. The beneficiaries who conveyed to him are not disputing the transactions. The appellant contends, however, that the 14 acres granted to him by deed No. 55 of 1943 was trust property and Joseph Skelton, his father could not legally convey trust property to his son. He therefore argued that the adjudication officer was in error when he granted the respondent absolute title to this portion of land. A further contention was that the Adjudication Officer held that the respondent was one of the persons entitled to share in the remaining 37 ¹/₄ acres of undivided trust land. This surplus of 37 ¹/₄ acres arose because at the trial it was revealed that what the trust deed described as 42 acres of land was actually 89 ¹/₄ acres. Counsel also argued that the Adjudication Officer was wrong when he ordered that the 37 ¹/₄ acres of undivided land be recorded as belonging to the heirs of Roceita Maduro rather than in the names of the beneficiaries named in the trust instrument.

6 Richard Hogarth Maduro, through whom the appellants claim was granted six acres of land in 1943 by deed No. 78 of 1943 by Joseph Skelton. The deed stated that it was given in consideration of the love and affection that the said Joseph Skelton had for Richard. There is also a recital that Richard Hogarth Maduro was in possession of the parcel of land for over 30 years. Under the trust deed of 1906 Richard Hogarth Maduro was entitled to six acres of land. The appellants however contend that this six acres of land conveyed to Richard...