Stephens et Al v Vanterpool et Al

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Hon. C.J.,,Gordon, J.A.,,Lewis, J.A.
• Judgment Date: 27 June 1967
• Neutral Citation: VG 1967 CA 3
• Docket Number: Civil Appeal No. 1 of 1967
• Date: 27 June 1967

West Indies Associated States Supreme Court. Court of Appeal

Hon. C.J., Gordon, J.A., Lewis, J.A.

Civil Appeal No. 1 of 1967

Stephens et al

and

Vanterpool et al

H.L. Harvey for appellants

Z. Butler for respondents

Real Property - Land — Possession

1 The Chief Justice:

2 This is an appeal from a judgment of Mr. Justice Heyliger, sitting in the Virgin Islands Circuit of the Supreme Court of the Windward Islands and Leeward Islands, on the 9th December 1966, in which he dismissed with costs an action by the plaintiffs appellants claiming recovery from the defendants-respondents of possession of three acres of land in Virgin Gorda and profits, from the 20th January 1965 and damages.

3 It is important to note exactly what the action was because the judgment of the court below, as also the judgment of this Court, relates only to the action as pleaded and the evidence given in support of that action, and is not in any way to prejudice the plaintiffs appellants appeal of any other remedy to which, on advice, they consider themselves entitled.

4 The plaintiffs who are brothers, claimed recovery possession of three acres of land at Guavaberry Gut in the alley, bounded on the east by the lands of Eloise Flax, on the west by a public road, on the north by the lands of the heirs of Abraham Gibbs and on the south by lands of Eloise Flax.

5 By paragraph 2 of the Statement of Claim it was alleged that on or before the 10th May, 1943, Christiana Elizabeth Gibbs was seized in fee simple and in possession of some premises as tenant in common with others.

6 By paragraph 3 it was alleged that on the 10th September 1950, the said Christians Elizabeth Gibbs died so seized and that by her will, dated 12th May 1913, she devised unto the two plaintiffs and one Esther Amelia 0'Nea1 equally all her claim rights and interests in a parcel of land containing 11 acres at Guavaberry Gut, and it was further alleged that after the death of Christiana Elizabeth Gibbs, the plaintiff's entered into possession of the three acres of the said land, and were so in possession on the 20th day of January, 1965.

7 So that it will be seen from that paragraph of the Statement of Claim that, although it was alleged by paragraph 2 that the predecessor in title, Christiana Elizabeth Gibbs was seized in fee simple and in possession of the premises as tenant in common with others of the three acres, and that she died seized in a similar way of 11 acres, that it was being pleaded that, these two plaintiffs entered into possession of three acres on the 10th September 1950, in other words, it was acknowledged in the pleading that up to the 10th September, 1950 any rights of the predecessor were rights as tenant in common.

8 Then paragraph 4 sets out that by a Deed of conveyance made 24th January, 1965, No. 85 of 1965, the first named defendant purported to convey the land aforesaid, which I take to be the 3 acres, of land, although it turns out In evidence that she conveyed the whole 11 acres, to the second name defendant and third name defendants, and the second named and third named defendants wrongfully entered into possession of same. Be it noted that there is nothing in the Statement of Claim to suggest that the plaintiffs were claiming that they had acquired adverse title by exclusive possession against whoever were the co-tenants in common.

9 Now, by the Defence it was denied that the plaintiffs or any of them are or is entitled to possession of the said 3 acres of land, and the first defendant Vanterpool alleged that she was in sole and undistributed possession of the parcel of land situate at Guavaberry Gut in the island of Virgin Gorda of which the said 3 acres, of land form a part, for upwards of 43 years from the year 1921 to 1964. So there she is specifically setting up title by way of adverse possession. It was also denied that the Christiana Gibbs referred to in the Statement of Claim was ever in possession of the 3 acres of land.

10 Then it was pleaded by paragraph 4, that by an oral agreement made on or about the 14th November, 1964, between the defendant Vanterpool and the two other defendants, the defendant Vanterpool put them into possession and occupation of the said parcel of land of which the said 3 acres formed a part. In paragraph 5, the Deed of Conveyance to the second and third defendants carrying out that agreement and dated the 20th January 1965 is set out. By paragraph 6, it was pleaded that the plaintiff had no right to bring the action as it did not first accrue within 12 years before the commencement of the action. That was the defence of the defendant Ethel Vanterpool.

11 The defence of the other two defendants relied upon the sale to themselves and denied the right of the plaintiffs to bring the action.

12 This was the state of the pleadings when the trial began.

13 Now, at the commencement of the case, objection was taken by learned counsel for the defendants, who also appeared in the court below that the plaintiffs had not pleaded particulars of how they came to be seized in fee simple as tenants in common, and he applied that paragraph 2 of the pleadings be struck out. I must say that that was a rather late stage to make such an application, but that does not arise now. But what is...