The Holy Redeemer Credit Union Ltd v Cambranes

• Jurisdiction: Belize
• Court: Supreme Court (Belize)
• Judge: Malone, C.J.
• Judgment Date: 14 June 1977
• Docket Number: Action No. 3 of 1975
• Date: 14 June 1977

Supreme Court

Malone, C.J.

Action No. 3 of 1975

The Holy Redeemer Credit Union Limited

and

Cambranes

Appearances:

Senator S.W. Musa for the plaintiff.

Mr. J.C. Gray for the defendant.

Before the Hon. Sir Denis Malone, Chief Justice.

Real Property - Possession — Mesne Profits

Facts: Defendant in possession — Plaintiff acquired legal title to land from devisee of testatrix — Prior to her death testatrix had conveyed property to third party by deed of conveyance — Third party failed to register deed of conveyance as incumbrance on Certificate of Title — No demand made by third party for testatrix to transfer Certificate of Title to him — Third party deserted land leaving defendant in occupation as a licensee — Whether defendant is entitled to possession as against the plaintiff — Whether plaintiff has absolute and indefeasible title

Held: Failure of third party to register deed of conveyance as an incumbrance on Certificate of Title meant that his interest in land was an equitable one, and one, which in the absence of fraud, could be overreached by the interest of one who held the legal estate — Finding that defendant was a deserted paramour to whom third party owed no legal obligation to maintain and therefore her possession was based on a bare license which was defeated by the plaintiff's legal title — Finding that failure to produce evidence of rental value of land precluded plaintiff from succeeding in claim for mesne profits — Judgment for plaintiff with costs.

1 The claim in this action are for possession of all that piece or parcel of land situate on the continuation of Church Street and being part of the lot numbered 613 on the official plan of the town of Belize bounded and described in Transfer Certificate of Title dated 17th March, 1973, registered in the Land Titles Register Volume 8 folio No. 200 in the name of the plaintiff as registered proprietor, together with all buildings and erections thereon, and for mesne profits from the 17th March, 1973, until recovery of possession. The defendant is presently in possession of the land.

2 Prior to the enactment of the General Registry Ordinance, No. 2 of 1954, which came into force on the 15th May, 1954, conveyances of the legal title to land, other than Crown Land, were effected by the common law method of deed of conveyance. With the enactment of that Ordinance was introduced registration of land under First Certificate of Title and transfers of land by Transfer Certificate of Title. Later, conveyancing by deed of conveyance was reintroduced but at the same time provision was made that once land had been registered, it could only be granted or transferred by certificate of title. That was the position in 1958 and is the position today. The relevant provisions which ensure that position are section 40 (1) of the Law of Property Ordinance, Charter 193, and section 13 (2) of the General Registry Ordinances, Chapter 218 (hereinafter referred to as “the Ordinance”). Those developments in the law have to be borne in mind when considering the facts of this case, as the land in question in this case was sold after being registered, once by deed of conveyance and once under a Transfer Certificate of Title. Because the land was so dealt with has arisen the matters at issue.

3 On the 31st May, 1948, one Manuela Loria, by a deed of conveyance became the owner of the land in question and on the 20th November, 1956, was registered proprietor thereof under a First Certificate of Title. The land was later let by her to one Theodocio Gomez, the man with whom the defendant lived on the land as man and wife. Some time in 1967 the defendants paramour caused to pay rent but continued to occupy the land, in what circumstances is not known, but it would seem as a tenant at sufferance. On the 25th June, 1969, by deed of conveyance, Manuela Loria sold the land to Gomez for an estate in fee simple in possession. Manuela Loria died five days later. By the will of Manuela Loria made the 2nd of December, 1961, the land was devised to her niece, Angelina Rosenda Chavez, and after probate of the will was granted on the 23rd May, 1970, the executors of the will transferred the land to the beneficiary under the will by a Transfer Certificate of Title on the 2nd September, 1971. On the 17th March, 1973, the land was sold by Angelina Chavez to the plaintiff company and was transferred by a Transfer Certificate of Title. When the plaintiff bought the land, it was aware through its manager, Mrs. Usher, that the land was in the occupation of the defendant, but it had no knowledge of Gomez or of the conveyance made to him. Gomez had in fact left the land in 1972 having, as the defendant described it, deserted her. He, however, gave to her permission to remain on the land. Angelina Chavez knew of the presence of the defendant and of Gomez on the land when it was transferred to her and of the presence of the defendant on the land when it was sold to the plaintiff. It is also clear that before the land was transferred to her, Angelina Chavez knew that there had been - to put it at its lowest - a dealing with the land by Manuela Loria which might have affected it. For the evidence of Angelina Chavez is as follows: –

“With Mr. Hassock and my father, I went to Mr. Gray to ask him where was the money that had been paid for the house as I had heard the house had been sold. Mr. Gray advised me to accept $1,000.00 for the purchase price but said he had not got the money from the buyer. I refused to do so.”

4 Then she continued: “I understood the position to be that they were trying to take advantage of my aunt but that the property had not been sold as no money had passed.” The evidence in chief of Angelina Chavez as to her understanding of the transaction is not altogether clear, but having regard to her answers in cross-examination, I must attribute to her a greater understanding of the transaction than she would at first have led me to believe that she possessed. It may well be that she suspected that Gomez had brought undue influence to bear on Manuela Loria to persuade her to convey the land to him, but I believe that she understood that there had been an agreement of sale and a conveyance. The fact - if it is a fact - that the purchase price has not been paid a does not to my mind affect the issues that arise in this case.

5 The effect of the conveyance to Gomez, it is agreed on both sides, was to create in Gomez an equitable title, for this was registered land conveyed off the register by deed of conveyance so that the transaction came within section 25 (3) of the Ordinance which provides as follows:

• “(3) A deed of conveyance purporting to transfer any registered land, or any estate or interest therein, which is required to be transferred by a certificate of title under this Ordinance shall not vest in the intended transferee the legal title to such land, estate or interest therein, but shall operate to create in the intended transferee an equitable title only to the land, estate or interest.”

6 In subsection (4) thereof, section 25 of the Ordinance then provides that:

• “(4) A person in whom the equitable title to any registered land or any estate or interest therein is beneficially vested by virtue of a deed of conveyance or his assignee may, after demand in writing made upon the person who holds the legal title to such land, estate or interest, by action claim transfer to himself by the latter person of the legal title to the said land, estate or right by means of a certificate of title.”

7 Counsel for the defendant submitted that by virtue of that sub-section, the holder of an equitable title conferred by section 25 (3) of the Ordinance has a chose in action which gives a right, after demand made, to claim a transfer to himself of the legal title by certificate of title from whomsoever has the legal title. So that in this case Gomez would now have the right to claim transfer of the legal title by certificate of title from the plaintiff. Countering that submission, counsel for the plaintiff submitted that the application of that section was limited to claiming a transfer of the legal title by certificate of title from the person by whom the equitable title had been created. So that in this case Gomez could have claimed the legal title from Manuela Loria but now that the legal title had passed through Angelina Chavez to the plaintiff, he has no claim against the plaintiff. For that construction of subsection 25(4) counsel for the plaintiff relied primarily on the provisions of sections 41(3) and 41(4) of the Law of Property Ordinance, Chapter 193. By section 41(3) of that Ordinance, it is provided that: “(3) A registered title to land under part II of the General Registry Ordinance, subject to all estates, interests charges and incumbrances noted on the certificate of title to the land, shall be an absolute and indefeasible title.” Then section 41(4) of that Ordinance describes what is meant by an absolute and indefeasible title. So much of it as is relevant states that:

• “(4) In this section ‘absolute’ and ‘indefeasible’ implies that a certificate of title issued by the Registrar under part II of the General Registry Ordinance ……… cannot be challenged in any court of law on the ground that some person, other than the person named therein as the registered proprietor, is he true legal owner of the land therein set forth…… except where it is proved to the court that:

  • (a) fraud was committed in respect of the issue of the certificate of title …. or

  • (b) the title of the registered proprietor has been superseded by a later title acquired under section forty-two of this Ordinance, or barred by the Limitation Ordinance, in favour of the person making the challenge.”

8 So the argument of counsel for the plaintiff goes that there being no allegation of fraud by anyone and no allegation of acquisition of...