Turnbull, Sr. v Turnbull, Jr. et Al
| Jurisdiction | British Virgin Islands |
| Judge | Georges, J. |
| Judgment Date | 02 September 1997 |
| Neutral Citation | VG 1997 HC 14 |
| Date | 02 September 1997 |
| Court | High Court (British Virgin Islands) |
| Docket Number | No. 31 of 1995 |
High Court
Georges, J.
No. 31 of 1995
Joseph S. Archibald Q.C, and Anthony L. Johnson for plaintiff
Paul B. Dennis for defendants
Real property - Transfer — Plaintiff alleged that in consideration of an agreement to purchase certain property for the price of $20,000 he had executed an instrument of transfer in favour of the plaintiff — Defendant claimed that the transfer was effectuated as a result of natural love and affection and denied the consideration — Plaintiff claimed undue influence and fraudulent misrepresentation and sought a rectification of the land register — Court found that the plaintiff was aware of what he was doing and had voluntarily transferred the property in the names of the defendants — Applications dismissed.
As is not by any means uncommon in these Islands, this action is a dispute en famille concerning land — in this case, Parcel 24 of Block 2539B of the West Central Registration Section comprising 0.60 acres of which the plaintiff, now a nonagenarian, was the sole registered proprietor up until 21st September 1994 when by a transfer of land dated 20th September 1994 executed by him, the defendants, his lawful son and daughter, became with himself the joint proprietors.
The instrument of transfer (Exhibit TET 2) recites that the consideration for transfer of the said interest to the defendants was natural love and affection (of the father for his children).
The evidence revealed and it was not disputed, that about the middle of June 1994 the plaintiff had entered into an oral agreement to sell a quarter acre of Parcel 24 to one Robert Filbry of Ontario Canada, a regular visitor to these shores, for a purchase price of $35,000.00.
The plaintiff's pleaded case as set out in his amended statement of claim filed 24th September 1996 is that shortly thereafter the defendants (who have lived and worked in St. Thomas U.S.V.I. and New York respectively for a number of years), approached him and orally prevailed upon him to sell the said portion of Parcel 24 to them and that he orally agreed to do so on August 15, 1994 for a purchase price of $20,000.00.
This the defendants deny stating that the plaintiff agreed of his own free will and accord to transfer Parcel 24 to them in consideration of natural love and affection and on 20th September 1994 executed an instrument of transfer (Exhibit TET2) accordingly.
In a nutshell, the defendants pleaded case as set out in paragraph 5 of their defence is that as a result of information received by the second defendant in early September 1994, it appeared that the plaintiff had entered into an injudicious transaction for sale of Parcel 24 to the Canadian Robert Filbry the applications of which he did not fully realize and which gave rise to concern and reason to believe that he was being taken advantage and might as a result unwittingly have lost his home.
In an effort to forestall the said transaction and to protect the plaintiff's interest, both defendants travelled to Tortola about mid-September and discussed with the plaintiff a proposal to include their names on the land register as joint proprietors with him so as to ensure that the land could not be sold without their consent.
It is part of the defendants' pleaded case that during those discussions the plaintiff acknowledged that he understood the proposed plan and agreed to its implementation. And it is on that basis and understanding that the instrument of transfer was subsequently executed by him in consideration of natural love and affection for them.
At paragraph 5 of his amended statement of claim the plaintiff alleges that the said transfer was in fact procured by the defendants by means of a fraudulent misrepresentation. This was never pleaded in the original statement of claim. The plaintiff now avers that the defendants persuaded him to sign the transfer by advising him that he was signing a document of a type which would facilitate them raising the $20,000 purchase price from a bank and presented to him for execution was an instrument of transfer.
That, the defendants categorically deny, adding that the plaintiff had executed the said transfer of his own free will and had fully understood its nature and contents.
At paragraph 6 of his amended statement of claim the plaintiff further alleged (again for the very first time) that the defendants had used, undue influence to have their names entered with his on the land register as joint proprietors of Parcel 24.
That too is denied by the defendants for the reasons given earlier.
At paragraph 7 of the amended statement of claim it is averred that at the time of executing the transfer, the plaintiff had no independent advice. The defendants made no admission in respect of that averment.
Finally the plaintiff at paragraph 8 of his statement of claim sates that he executed the transfer under a total mistake as to its nature and contents and in the mistaken belief that he was executing an instrument of a wholly different kind, namely, an instrument to facilitate the defendants raising the purchase price of $20,0,00.00.
The defendants on the other hand contend that subsequent to the execution of the transfer, the plaintiff had advised the second defendant by telephone on a number of occasions that Robert Filbry had been pressing him for refund of $2,000 which he had paid to him (the plaintiff) prior to execution of the transfer to the defendants and that he (the said plaintiff) sought to persuade the second defendant to pay the said amount to Filbry. That the second defendant refused to do. Whereupon, the plaintiff demanded that he should pay him the sum of $20,000.00 for the land. That the second defendant also declined to do pleading that there had been no agreement that she should do so and that she was under no such obligation. Following which, the plaintiff intimated his desire to have both the defendants' names removed from the land register to table him to sell (and transfer) the said portion of Parcel 24 to Robert Filbry.
The defendants did not accede to the plaintiff's request to have their names removed as aforesaid — hence this action.
The plaintiff now seeks a declaration from this court that:
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(1) The defendants procured the transfer of Parcel 24 from him by fraudulent misrepresentation.
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(2) They used undue influence to have their names entered on the Land Register as joint proprietors with himself.
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(3) The said defendants made an unconscionable bargain with him to his loss and prejudice.
The plaintiff also seeks an order for rectification of the Land Register to restore his name as sole proprietor of the said Parcel 24.
For the purpose of analysis, the evidence in this case may conveniently be divided into three segments, namely:
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(1) The circumstances/ events which led to the execution of the transfer of land (exhibit TET 2) by the plaintiff on 20th September 1994 whereby the defendants became joint proprietors with him of Parcel 24.
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(2) The circumstances surrounding the actual execution of the document by the plaintiff.
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(3) The events which followed the execution of the document and resulted in this action by the plaintiff.
The undisputed facts are that from the 28th June 1974, the plaintiff became the sole registered proprietor with title absolute of Parcel 24 and that prior thereto had his house on it for over three decades. There he dwelt with his wife for 55 years and nine months before shy predeceased him on the 18th September 1995 having borne him four children including both defendants who were born there.
The plaintiff told the court that apart from twelve years spent between Santo Domingo (4 years), St. John (6 years) and St. Thomas (2 years), he had spent much of his life tilling the soil at Meyers Estate where he cultivated cash crops such as potatoes, tannias, yams, bananas and cassava which he sold in the Road Town market on Saturdays. He also reared cattle and kept a donkey. Up to the present day he continues to eke out a meagre existence from the earth. The plaintiff disclosed that apart from the four children of his marriage, he had reared six others.
By the year 1994, his wife, then in her 80's had been ailing with heart trouble for four years the court was told. The defendants had emigrated to St Thomas in the early sixties from where the second defendant (Icena) later moved onto New York where she has resided and worked for the past sixteen years.
None of his ten children the plaintiff lamented had ever supported him. “They don't know whether I eat or drink” he testified. The first defendant (Junior) however gave his mother $20.00 a month sometimes he added and visited once a month from St. Thomas.
He (the plaintiff) further revealed that he had supported his wife but time came when he had no money to give to her. With advancing years and mounting medical expenses, the picture which emerges is that the plaintiff became increasingly strapped for cash.
It was then that he met Robert alias ‘Bob’ Filbry, through his cousin Naomi Turnbull. Filbry, he was told, wished to purchase a piece of land in Tortola and he himself being in need of money, bargained to sell him a quarter acre of Parcel 24 for $35,000.00. An agreement was struck.
On one of Junior's visits from St Thomas to the homestead, the plaintiff said that he told him about the proposed sale of a portion of the land, whereupon Junior told him that he would buy he land. Nothing however came of this for Junior never came to discuss the price or payment and when he (the plaintiff) asked him about it, he replied “Pappy, sell your land. It is yours. Sell it to who you want.” And that made him sell the land to Robert the plaintiff added.
All of this was...
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