Analysis
The appeal arose out of a disputed claim to land.
In 1856 or 1857 W, who had been seised of land in fee simple, died. His will set out to leave a life interest in the land to his widow and thereafter to his four named children and after them to five named grandchildren. One of those grandchildren had (at least) two sons, E and B.
The respondent, G, was the grandson of B.
The appellants, K and R, derived their title from the other son E. In 1947, E had made a will asserting that he was the freehold owner of the land, it having devolved upon him as the heir at law of W, and purporting to dispose of it as such. He granted a life interest in the land to his widow and provided that thereafter it should pass to four named grandchildren. In 1996, K purchased the land from E’s executor. R was a sub-purchaser of part of the land from K.
Although E described himself in his will as W’s ‘heir at law’, he cannot have inherited the fee simple in the land from W in that capacity. W’s will did not purport to devise the land to such an heir but to leave it to his grandchildren ‘for their heirs and assigns forever in fee tail’. Both sides presented their case on the basis that W’s will had created some form of co-ownership amongst the grandchildren and thereafter amongst their successors.
The action, brought by G against K and R, claimed the land and asserted that K and R had no title to the parcels of land that they occupied. K and R’s case depended on the proposition that the title which they bought from E’s executor was a possessory title rather than one deriving from W’s will.
On the judge’s primary findings of fact, confirmed by the Court of Appeal, E had died in possession of the land and regarded himself as sole owner of it, his widow had controlled it for twenty two years after he died and his executor had continued to do so up to the time it was sold to K in 1996. Therefore there was possession adverse to any legitimate claim through W’s will, for considerably more than 12 years.
The trial judge dismissed G’s claim holding that by the time K purchased the land, the vendors, the estate of E, had acquired a good possessory title which they had successfully passed to K. The Court of Appeal reversed the decision on the grounds that under the Limitation Act 1988 no on beneficiary could propound adverse possession against another beneficiary under the same trust and hence neither E nor his executors had acquired a title which they could pass to K. K and R appealed.
Held, allowing the appeal:
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- 1) E, or if not him then those claiming under him, established a good possessory title to the land comfortably before 1988 and thus were able to pass it to K when the land was sold to him in 1996. Conversely any claim which G, or anyone through whom he claimed, may have had, had been extinguished.
- 2) There is no doubt that the effect of the Limitation Act 1988 is that no one beneficiary could propound adverse possession against another beneficiary under the same trust. However, that Act was not in force at the material time and the legislation which was in force was to the opposite effect.
- 3) The law of possessory title derives from the statutory limitation rule that no action can be brought to recover land after the expiration of twelve years from the date on which the right of action accrued either to the claimant or to a person through whom he claims. The 1988 Act contained an exception to this rule for the case of a beneficiary under a trust who is in possession. However this was a reversal of the previous position under the Real Property Limitation Act 1951. This Act contained no such exception and it was settled law that one beneficiary could indeed set up a title based on adverse possession against another beneficiary. Further it expressly provided that where adverse possession was established against a tenant for life holding under an entail, it was good also against any subsequent interest which the tenant for life might have barred, in other words, against any subsequent tenant for life under the entail. The situation had been abandoned in England by the Limitation Act 1939 but the same change had not been made in St Vincent and the Grenadines until the passing of the 1988 Act coupled with the repeal of the 1851 Act.
4) K and R having accepted or assumed that the relevant statute was the
1988 Act
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- in the Court of Appeal, the Court only heard argument on the basis of the correct
1851 Act de bene esse
- . The conduct of the case for G had not been in any manner adversely affected by the misapprehension of the relevant statute.
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