Flowers v White et Al

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Malone, C.J.
• Judgment Date: 14 June 1977
• Docket Number: Civil Action No. 102 of 1975
• Date: 14 June 1977

Supreme Court

Malone, C.J.

Civil Action No. 102 of 1975

Flowers

and

White et al

Appearances:

The Hon. P.S.W. Goldson for the plaintiff.

Mr. J.C. Gray for the defendants.

Before the Hon. D.E.G. Malone, Chief Justice.

Real Property - Possession

Facts: Defendant's claim based on 40 years undisturbed possession — Plaintiff based her claim on devolution — Whether sufficient proof of title in support of plaintiff's claim to recover possession

Held: Property was originally devised to joint tenants and no evidence of devolution by Jus Accrescendi existed to support plaintiff's claim to entire property — Judgment for defendants with costs.

1 This action was instituted and prosecuted by the plaintiff under a power of attorney executed by one Gertrude Roselin Usher. The claims are:

1

for the possession of the entirety of lot No. 806 situate at the corner of Handyside Street and Gabourel Lane in Belize City; 2. that the defendants be ordered to vacate the said premises; and 3. for mesne profits.

2 On behalf of Gertrude Roselin Usher, the plaintiff, in support of his case for possession, relied on the following documents –

1

The undisputed root title of all the parties to this action. Namely the will of Lydia White dated the 14th February, 1890 and admitted to probate on the 17th January, 1891. 2. An indenture of the 13th January, 1892, made between Jane Horne and her son Matthew Alexander Horne. 3. An indenture of the 29th July, 1916, made between Jane Horne, her husband William Benjamin Horne and her son Matthew Alexander Horne. 4. An indenture of the 19th April, 1918 made between Matthew Alexander Horne and Walter Hood. 5. An indenture of the 7th February, 1922 made between Walter Hood and James Maurice Goff. 6. The will of Eleanor Bernard dated the 13th November, 1923 and admitted to probate on the 13th January, 1931. 7. The will of James Maurice Goff dated the 9th June, 1959 and admitted to probate on the 3rd July, 1963.

3 By her will Lydia White devised and bequeathed the residue of her estate to her executors and trustees and directed her executors and trustees to sell the same and divide the proceeds of sale between her nine named children as joint tenants. These children included Eleanor Bernard, Jane Horne and Joseph White. Lot No. 806 is not mentioned in the will but it is agreed on all sides that it formed part of the residuary estate of Lydia White. The lot was not sold by the executors and trustees nor is there any document to show that it was released by them to the cestuis que trust. The first direct mention of lot No. 806 in the documents under consideration appears in the indenture of the 19th April, 1918 made between Matthew Alexander Horne and Walter Hood when Matthew Alexander Horne as beneficial owner conveyed to Walter Hood his:

“undivided share and interest of and in all that lot of land situate at the corner of Handyside Street and Gabourel Lane being the lot numbered 806 on the official plan of the town of Belize together with all buildings and erections thereon to hold the same unto and to the use of the said Walter Hood in fee simple.”

4 Matthew Alexander Home was a grandchild of Lydia White. The extent of the interest in lot No. 806 which he conveyed to Walter Hood has to be traced back to his mother Jane Horne and through the deeds of indenture executed by her in 1892 and 1916. Jane Horne, it will be remembered, had acquired as joint tenant an interest in lot No. 806 under the will of her mother Lydia White, but precisely what was the extent of her interest in the lot when she executed the indentures 1892 and 1916 is not known, as there is no evidence to show how the jus accrescendi had operated in relation to herself and her fellow joint tenants. All that is known is that Jane Home by the indenture of 1892 assigned to Matthew Alexander Horne and her husband as tenants in common whatever interest she then had in the lot subject to a power of appointment retained by her and that by the indenture of 1916 she released that power and conveyed whatever interest she then had in the lot to her husband for his natural life and on his death for an estate in fee simple to Matthew Alexander Horne. The indenture of 1918 made between Matthew Alexander Horne and Walter Hood records that the death of William Benjamin Horne, the husband of Jane Horne, occurred on the 23rd November, 1917, so that by the indenture of 1918, Walter Hood acquired whatever had been Jane Horne's interest in the lot as that interest had by the date of the indenture of 1918 passed to Matthew Alexander Horne.

5 In 1922 Walter Hood purported to convey unto and to the use of James Maurice Goff in fee single a one third undivided share in lot No. 806. I say purported as it is not known, for the reasons I have given, what was the extent of the interest that Walter Hood had acquired in the lot from Matthew Alexander Horne and there is no evidence that any additional interest in the lot had passed to him from any other source. All that is known is that by the indenture of 1922, James Maurice Goff acquired whatever interest Walter Hood...