Bennett, Vera (executor of the estate of Valda Ferrest Bennett) et Al v Vincent Pearson (executor of the estate of Agnes May Pearson) et Al

• Jurisdiction: Jamaica
• Judge: Sykes 1 (Ag)
• Judgment Date: 25 November 2004
• Judgment citation (vLex): [2004] 11 JJC 2501
• Court: Supreme Court (Jamaica)
• Date: 25 November 2004

IN THE SUPREME COURT OF JUDICATURE

IN COMMON LAW

CLAIM NO. C.L. 1994/B446

BETWEEN

VERA BENNETT (Executor of the Estate of Valda Ferrest Bennett)

FIRST CLAIMANT

AND

STANLEY BENNETT (Executor of the Estate of Valda Ferrest Bennett)

SECOND CLAIMANT

AND

VINCENT PEARSON (Executor of the Estate of Agnes May Pearson)

FIRST DEFENDANT

AND

ESTATE OF AGNES MAY PEARSON

SECOND DEFENDANT

IN CHAMBERS

Dr. Lloyd Barnett and Mr. Keith Bishop instructed by Bishop and Fullerton for the claimants

Mr. Kevin Williams instructed by Grant, Stewart, Phillips and Company for the first defendant

SECURITY FOR COSTS - Adverse possession - Equitable interest - Breach of contract - Whether void for uncertainty

Sykes 1 (Ag)

1 SECURITY FOR COSTS, ADVERSE POSSESSION, EQUITABLE INTEREST AND CONTRACT VOID FOR UNCERTAINTY

2 1. There are two applications before me. The first is an application by the first defendant for security for costs. There was a preliminary objection, which was upheld, and the application was dismissed with costs to the claimants to be agreed or taxed. Leave to appeal was granted. I have set out the reasons for my decision at paragraphs 21 – 22.

3 2. The second is an application by the first defendant for a declaration that the agreement for sale dated January 15, 1977 for the sale of property registered at Volume 429 Folio 4 of the Register Book of Titles is void for uncertainty and that judgment be entered for the first defendant. Second, he asks for an order of possession and that the first defendant pay to the claimants the sum of $200 with interest at 12% per annum from January 27, 1977.

4 3. The grounds for these applications are

• a. that the claim for breach of contract arose seventeen years before the filing of the action and so is statute barred;

• b. parol evidence is not admissible to resolve the uncertainty in the agreement for sale; and

• c. the claim be struck out because the Limitation of Actions Act has guillotined this claim

5 4. I have not accepted any of the submissions made in support of these orders.

6 The root of the problem

7 5. This dispute has its roots way back in the year 1977 when Ms Valda Bennett, the original purchaser and Ms. Agnes May Pearson, the original seller, signed an agreement for sale of land. As the title of the action indicates, the original parties to the contract are now deceased. The witness to the agreement is deceased as well.

8 6. The agreement for sale clearly was not the product of an attorney. The language of the document does however suggest some familiarity with transactions of this nature. In brief, the parties agreed on the purchase price; the deposit, with balance payable on completion; costs to be borne by the parties equally, taxes and insurance to be adjusted as of the date of possession. The big problem is this: no care was taken to describe properly the land that was being sold. The property was described in this way: One only Lot Part of Land Premises No. 69 ½ Lady Musgrave Road, Kingston 10 . The estate of Ms Valda Bennett now seeks to enforce the agreement against the estate of Ms Agnes May Pearson. The executor of Ms Pearson's estate resists. He says the contract is not clear and therefore void. The courts cannot enforce such a contract. Is this correct?

9 The admissibility of parol evidence

10 7. Mr. Williams submits that since all the original parties to the contract and the witness to the agreement are all deceased there is no one available, in this life, who can speak with certainty to what part of the 69 ½ Lady Musgrave Road was to be sold. This he said meant that the contract could not now be enforced against the estate of Ms Pearson.

11 8. Mr. Williams displays a list of documents each clearly referring to the sale but none as specific as would be desired. In addition, he submits that the executor, Mr. Pearson, had a power of attorney from Ms Pearson at or around the time of the contract. The significance of that statement is that Mr. Pearson from as far back as April 7, 1977 told Ms Bennett, the purchaser, that no part of the land was for sale and that she should come and retrieve her cheque that she had paid pursuant to the sale agreement. Ms. Bennett did not do so.

12 9. Mr. Williams' submission is based on half the story. The other half is this: Ms Bennett before she died had actually commenced this action against the executors of Ms Pearson's estate. She filed an affidavit setting out the history of the matter. She alleges that she had indeed bought the land at 69 ½ Lady Musgrave Road. Ms Bennett alleges that she became a tenant of Ms. Pearson from as far back as 1946. Ms. Bennett lived at the property until her death. The affidavit states that Ms. Pearson had subdivided the land and sold one of the parcels to her. Ms. Bennett also states that she built houses on the parcel. According to the affidavit, it was agreed that lot 6 would be sold to Ms. Bennett.

13 10. The propositions advanced by Mr. Williams presuppose that the rule against parol evidence is either an absolute rule with no known exceptions or if there are exceptions, none applies to this case. The exceptions to this rule are numerous. Courts of equity for well over one hundred years have held that parol evidence is admissible to identify the subject matter of a contract in suits for specific performance. The three cases that will be cited all involved the sale of land. In Auerbach v Nelson [1919] 2 Ch 383 the court held that parol evidence was admissible to identify the subject matter of an oral agreement for sale which was...