Jeffrey v Griffith et Al
| Jurisdiction | Barbados |
| Judge | Williams, J |
| Judgment Date | 22 December 1975 |
| Neutral Citation | BB 1975 HC 23 |
| Docket Number | No. 464 of 1973 |
| Court | High Court (Barbados) |
| Date | 22 December 1975 |
High Court
Williams, J
No. 464 of 1973
Mr. H.B. St. John, Q.C., with Yearwood and Boyce for the plaintiff
Mr. H. deB. Forde with Hutchinson Banfield for the defendants
Equity - Laches.
Facts: Whether the doctrine of laches applied in the particular circumstances.
Held: Equity, acting on the analogy of the Statute of Limitations allowed the conveyance to be avoided — The doctrine of laches did not apply.
The plaintiff, Doris Jeffrey, is the daughter of the late George Lyte Kirton, and lives in Brooklyn, New York, U.S.A. Her father who also lived in the United States of America died on September 5, 1954 leaving his last will and testament dated March 23, 1950. This will was admitted to probate by the High Court of this Island, on August 10, 1973 and on August 27, 1973 Letters of Administration cum testamento annexo to his estate were issued to the plaintiff. In this case she sues in the capacity of administratrix to her father's estate.
The said George Zyte Kirton was prior to his death the owner in possession of a parcel of land containing about 11 acres 11 perches and situate at Apple Hall in the parish of St. Philip. This parcel of land is the subject matter of this suit. The plaintiff alleges that after the death of George Lyte Kirton, Dr. Aubrey Kirton, the brother of George Lyte, looked after the land on behalf of George Zyte's estate until Dr. Aubrey's own death in 1958 and that thereafter Dr. Leonard Kirton, another brother, assumed control of the land on behalf of George Lyte's estate.
The stand taken by the defendants is different. They do not admit that Dr. Aubrey Kirton looked after the land after his brother's death in 1954 until his own death in 1958. They go on to say that, even if he did so look after the land, it was not or behalf of George Lyte's estate. They agree that Dr. Leonard Kirton assumed control and took possession of the land but deny that his assumption of control or possession was on behalf of the estate of George Lyte Kirton.
It is expedient to resolve these issues before proceeding further. The plaintiff produced some correspondence which threw light on the matter. Exhibit ‘C’ is a letter dated September 13, 1955, from Dr. Aubrey Kirton to the plaintiff. It is mainly a rambling and disjointed account of the history of the family. But it clearly recognises George Lyte's ownership of the land and the plaintiff's inheritance. But a subsequent letter to the plaintiff Exhibit ‘D’, dated June 4, 1958 proves beyond any possibility of doubt that Dr. Aubrey Kirton was looking after the land on be half of the brother's estate. In the first paragraph of this letter he stated that he had just paid the taxes on “George's land” $94.16. In the second paragraph he stated that $198 was due from Mr. Cox “leaving a profit of $103.84 from sale of the grass.” Then this sentence occurs which is so significant that I will quote it as it stands:- “Such has been the procedure since 1954 when I sent you eight hundred dollars (B. W. I.)”
In this letter he is giving an account of his stewardship from the death of George Lyte in 1954 until the time of writing. He went on in the next paragraph to say:- “There remains therefore a balance of some four hundred dollars and you will remember that when Mr. Schwartz cabled to me to say that there was no money to bury George, I explained that I would send the funds vis-a-vis the land.”
At the end of the letter he said:–
“On the other hand my solicitor first told me to have nothing to do with the administration of the property but has later said that if he were in my shoes he would do precisely what I am doing i.e. paying myself out of the profits from the sale of the grass.”
In a subsequent letter to the plaintiff, Exhibit ‘E’; dated August 25, 1958 he referred to the plaintiff's contention that he had sent only $500 for her father's funeral expenses, and said that he had sent $800 and that she appeared to have forgotten that in order for her to receive $500 in American currency, he had to send $800 in Barbadian currency. He went on to state that George's land had not yet repaid his $800 in Barbadian currency or anything like it. He went on to say-“I have to repeat that Mr. Cox has ceased to rent the land. The land is therefore not producing any revenue. I have no interest whatsoever in acquiring the land. I should like to assist in preventing it from being sold to strangers. It will be sold if the taxes when due again are not paid within three weeks. I am still willing to pay the taxes, by agreement with you, as a member of my family, in my name, for your ultimate benefit.”
And he ended the letter as follows:–
“The land is, I believe, suitable for growing canes which would in due course be a really paying proposition but I can do nothing about that without your confidence, trust and enlightened co-operation.”
Dr. Aubrey Kirton would have died shortly after he wrote that letter. Can it be doubted in the light of the above that throughout the period until his death he looked after the land for the benefit of the estate of his deceased brother, George Lyte, and more particularly to the end that ;the plaintiff would inherit it?
Mrs. Ada Crichlow was a witness whose credibility is one of the matters in contention in this case. She now lives at Merricks but lived a stone's throw from the land at Apple Hall for about 47 years. Her husband who died in 1959 was the caretaker of the land. She told how George Lyte Kirton came from New York in the thirties, took possession of the land and put her husband in charge of it. Her husband would sell tree grass, pay the taxes and send the difference to George Lyte Kirton. She said –
“Mr. George died before my husband. So Aubrey took possession of the land, he said for his niece. Leased it to Castle Grant Ltd. for 3 years. My husband continued to look after it. When the three years were out by that time Aubrey died. My husband died close behind.”
This evidence is confirmed by the contents of Dr. Aubrey's letters quoted above. My finding is that Dr. Aubrey Kirton managed the land for his deceased brother's estate up to his death in 1958. What about after Dr. Aubrey's death? Mrs. Crichlow continued the story of the land after that event –
“The pasture vas just there and nobody was there to look after it. I knew where Mr. Leonard was — he used to write to us — and Mr. Niles was Mr. Leonard's close friend. My husband used to look after 4 separate acres for Mr. Leonard. Mr. Leonard sent Mr. Niles to me. Mr. Niles came to me to find out whether I would look after Mr. Leonard's land on the same basis as my husband used to look after it. I sent message by Mr. Niles to Mr. Leonard asking him if he knew anything concerning his brother's land because my husband had died and he used to look after it. Mr. Leonard wrote to me Exhibit “F”.”
That letter dated April 24, 1961, opens as follows:–
“Dear Mrs. Crichlow,
I have paid tree taxes due on the land of the estate of my brother George L. Kirton (decd.). I am now asking you to take care of the 11 acres on the same conditions that you are taking care of mine; that is, engage the grass, see about the delivery of same and receive the money.”
He went on to instruct ors. Crichlow to take her wages out of the money and place the remainder in a bank to be later specified. Three years later on April-28, 1954 he wrote to her concerning the grass on the land of my late brother George” — Exhibit “G”.
Counsel for the defendants submitted that references by Dr. Leonard in these letters to the land of the estate of his brother George L. Kirton (decd.) and to the land of his late brother were merely descriptive of the land to which he was referring and must be cons-11-rued as such. He referred to section 3 of the Limitation and Prescription Act, 1891 No. 2 [B] which provides as follows:
“From and after the passing of this Act no person shall make an entry or distress or bring an action to recover any land or rent but within ten years next after the time at which the right to make such entry or distress or to bring such action shall have first accrused to some person through whom he claims or if such right shall not have accrued to any person through whom he claims, then within ten
years next after the time at which the right to make such entry or distress, or to bring such action shall have first accrued to the person making or bringing the same.”
Counsel also relied on section 14 of the same Act which reads as follows:
“14. When a younger brother or other relation of the person entitled as heir to the possession or receipt of the profits of any land, or to the receipt of any rent, shall enter into the possession or receipt thereof, such possession or receipt shall not be deemed to be the possession or receipt of or by the person entitled as heir.
Counsel's submission is that Dr. Leonard's letter to Mrs. Crichlow of April 24, 1961 marked the commencement of a period of adverse possession by Dr. Leonard, a period in which he exercised control over the land and received the profits arising from the sale of the grass.
This contention is disputed by counsel for the plaintiff. His submission is that Dr. Leonard's early letters show that he was intervening on behalf of the estate. He further submitted that once he had undertaken that role he could not afterwards abandon it without doing violence to the principles of equity hick are now firmly established in our jurisprudence.
In the light of these conflicting submissions I must determine the character of Dr. Leonard's intervention. I refer to section 15 of the same Act to which I earlier referred. It is as follows:
“15. When any acknowledgement of the title of the person entitled to any land or rent shall have been given to him, or his agent, signed by the...
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