Gaskin v Forte et Al; Forte v Gaskin and Grimes

• Jurisdiction: Barbados
• Court: High Court (Barbados)
• Judge: Husbands, J.
• Judgment Date: 28 November 1979
• Neutral Citation: BB 1979 HC 54
• Docket Number: Nos. 599 & 600 of 1975
• Date: 28 November 1979

High Court

Husbands, J.

Nos. 599 & 600 of 1975

Gaskin

and

Forte et al

Forte

and

Gaskin and Grimes

Mr. A. P. Shepherd for the plaintiffs and the defendants.

Mr. C. A. Phillips, S. C. and Mr. N. Niles for the claimant.

Real property - Adverse possession

Husbands, J.

1 By indenture dated 18 ^th August, 1975, Christopher Lamonte Gaskin mortgaged to Jacob Forte a parcel of land at Holder's Hill containing some 39 740 square feet. By indenture of the said date Jacob Forte mortgaged to Christopher Lamonte Gaskin a parcel of land at holder's Hill containing 9 670 square feet.

2 By separate writs filed on 19 ^th August, 1975 — numbered respectively 599 and 600 of 1975 — Christopher Lamonte Gaskin and Jacob Forte sought to recover from each other the sums secured by the respective mortgages and in default of payment requested the sale of the mortgaged properties.

3 On the said 19 ^th August, 1975, Gaskin and Forte each filed in the registry of the Supreme Court an acknowledgment of his indebtedness to the other and each submitted himself to the orders of the court in respect of his mortgaged property.

4 The properties were duly advertised in Official Gazette (28. 8. 75) and in Advocate-News (on 28. 8. 75, 30. 9. 75 and 28.10. 75) and persons having claims against the said properties were instructed to file their claims with the registrar before the 30 ^th October, 1975.

5 In response to these advertisements Laureston Grimes on the 30 ^th October, 1975, filed a claim in the Suit No. 600 of 1975 brought by Forte against Gaskin. His claim reed as follows –

“The claim of Laureston Grimes, fisherman of Holder's Hill, in the parish of St. James in Barbados shows:

• 1. That the said Laureston Grimes is the administrator de bonis non of the estate of Richard Haynes, deceased, late of Holder's Hill in the parish of St. James in Barbados.

• 2. That the parcel of land the subject matter of this suit forms part of the said estate of Richard Haynes, deceased.

• 3. That the said Laureston Grimes as administrator de bonis non of the said estate of Richard Haynes deceased, claims a lien against the said property.

• 4. That the said Laureston Grimes claims his costs to be taxed.”

6 Grimes requested the registrar to set down his claim for hearing before the court.

7 In the Suit No. 599 of 1975, brought by Gaskin against Forte, no claim was filed and the deputy registrar of the Supreme Court issued a report to this effect dated 31 ^st October, 1975. On 10 ^th November, 1975 Mr. Shepherd, counsel for Gaskin moved the court for an order for sale of the property described in that suit. In support of his motion counsel filed an affidavit setting out, among other things, his understanding of Forte's entitlement to the property. Counsel's affidavit reads as follows -

• “I, Alair Paul Shepherd., attorney-at-law of Pinfold Street in the City of Bridgetown, make oath and say as follows:–

  I am one of the attorneys-at-law acting for the above-named plaintiff and have the conduct of this suit on his behalf.

• 2. The said suit is of a non-contentious nature and is brought for the purpose of clarifying the title of the defendant to the mortgaged property and it is intended upon the court granting the relief sought by way of sale that the said property shall be bought in by the defendant or on his behalf or on his instructions.

• 3. As I am informed by the defendant and verily believe the title of the defendant to the land is derived from the fact that he was allowed into possession of the land by the late Elizabeth Haynes who derived her title from the will of her husband Richard Haynes who died in Barbados in 1938 and whose will was proved on the 25 ^th day of March, 1938. By his will Richard Haynes divided his property equally between his widow Elizabeth Haynes and his daughter Wilpert Nowell. In 1942 the defendant was allowed into possession of the land by the late Elizabeth Haynes who before she died had the property surveyed and the defendant was put in possession of the southernmost portion, which is the subject matter of this suit. The defendant has had continuous possession of his portion since 1942, and although he has not paid rent since 1951 he has been paying the land taxes for his portion of the estate.

• 4. I make this affidavit in support of the relief by way of sale as claimed in the statement of claim.”

8 Having had regard to this affidavit and the deputy registrar's report mentioned earlier, the court on 10 ^th November, 1975, ordered that this property be sold and the proceeds of the sale duly distributed. On 25 ^th November, 1975 Laureston Grimes, as administrator de bonis non of the estate of Richard Haynes, took out a summons for an order to set aside the order for sale and distribution and sought leave to file a claim in this suit No. 599 of 1975 out of time. Grimes' affidavit in support of this summons stated in part -

• “2. That the parcel of land the subject matter of this suit forms part of the said estate of Richard Haynes, deceased.

• 3. That Jacob Forte, the abovementioned defendant, is not in lawful possession of the said parcel of land.

• 4. That I, as administrator de bonis non of the said estate of Richard Haynes deceased, claim a lien against the said parcel of land.

• 5. That I have not filed a claim within the time allowed, that is on or before the 30 ^th day of October, 1975.

• 6. That I did notice the advertisement in the Advocate-News for my claim with respect to Supreme Court Suit No. 600 of 1975 entitled Jacob Forte (plaintiff) and Christopher Lamonte Gaskin (defendant), and I did duly file a claim herein.

• 7. That I did not notice that at or about the same time in the Advocate-News there was an advertisement for any claim with respect to Supreme Court Suit No. 599 of 1975 entitled Christopher Lamonte Gaskin (plaintiff) and Jacob Forte (defendant) since I did not expect to see a similar advertisement with the roles of the plaintiff and defendant reversed.”

9 The order for sale and distribution made in Suit No. 599 of 1975 was set aside and Grimes was granted leave to file his claim in this suit out of time. On 23 ^rd December, 1975 Grimes filed his claim in the terms of paragraphs 2 and 4 of the affidavit in support of his summons quoted above.

10 On 25 ^th April, 1976 Grimes secured a court order by consent for the consolidation of Suits Nos. 599 and 600 of 1975. Due to a misdescription of the property on Suit 599 of 1975 it was ordered that this property be re-advertised. This was done. There were no new claims and the matters proceeded.

11 Suit No. 599 of 1975 concerns a parcel of 9 670 square feet of land as shown in a plan Exhibit “G”. Suit No. 600 of 1975 concerns 39 740 square feet of land as shown in plan Exhibit “F”. The evidence disclosed that both of these parcels of land were properties of Richard Haynes. In his will dated 25 ^th October, 1937, Haynes appointed one Duncan Gibson to be his executor and disposed of his properties as follows –

“I give and bequeath to my wife Elizabeth Haynes for and during her natural life, the possession, control and use of my hip house, out offices, household furnitures, with 2 roods of land upon the premises occupied by us as a home. I give, devise and bequeath said hip house, out offices, household furnitures and the 2 roods of land thereof at the date of my wife's decease to my lawful son Evans Haynes, at present residing in the Istmus of Panama. I also give, devise and bequeath to my said lawful son Evans Haynes, 3 roods 16 and one-fifth perches of land situated at Holder's Hill, St. James.

I give, devise and bequeath to my beloved wife Elizabeth Haynes and my beloved daughter Mrs. Wilpert Nowell, at present residing in the Isthmus of Panama, 2 roods of land to be divided equally between them, each getting 1 road of said land situated at Paynes Bay, St. James.

I direct my executor to sell one rood of land belonging to me situated at King's Village, Holder's Hill, and pay my funeral expenses.”

12 Richard Haynes died on the 11 ^th February, 1938, His will was admitted to probate on 25 ^th March, 1938. In 1942 his appointed executor Duncan Gibson died intestate and in 1959 Priscilla Grimes was granted Letters of Administration to Richard Haynes' estate. Priscilla was the sister of Elizabeth Haynes, Richard's wife.

13 According...