Catherine Victoria Simmons v Madge Olivene Wright Executor Estate Gwendolyn Miranda Simmons et Al

• Jurisdiction: Jamaica
• Judge: Campbell J.
• Judgment Date: 27 May 2002
• Judgment citation (vLex): [2002] 5 JJC 2702
• Docket Number: SUIT NO. E 205/1996
• Court: Supreme Court (Jamaica)
• Date: 27 May 2002

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

SUIT NO. E 205/1996

BETWEEN

CATHERINE VICTORIA SIMMONS

PLAINTIFF

AND

MADGE OLIVENE WRIGHT Executor Estate GWENDOLYN MIRANDA SIMMONS

1 ^ST DEFENDANT

AND

CONRAD MARTINEC

2 ^ND DEFENDANT

AND

CATHERINE VERONICA MARTINEC

3 ^RD DEFENDANT

Ms. Janet Nosworthy for the Plaintiff.

Mr. Samuel Harrison for the Defendants.

REAL PROPERTY - Dwelling house - Declaration of legal and beneficial interest in property - Whether there was an agreement between plaintiff and deceased as to each party's entitlement to legal and beneficial interest in property - Whether cause of action statute barred - Limitation of Actions Act

Campbell J

1 The Plaintiff is 96 years old and blind. She is the mother of the deceased and the First Defendant. She is the mother-in-law of the Second Defendant and the grandmother of the Third Defendant. The Plaintiff's family was once a harmonious and loving unit however it was quite clear as the evidence unfolded that the family had polarised behind the parties in this matter.

2 The issue that has torn this family asunder concerns the ownership of a dwelling house. It culminated in an action commenced by Writ of Summons and Endorsement filed on the 8 ^th of July 1996 in which the Plaintiff claims as party entitled to the legal and beneficial interest in the land known as 22 Cairncurran Avenue in the parish of St. Andrew, against the first Defendant as Executor of the estate of the deceased and the Second and Third Defendants, the beneficiaries and devisees under the deceased Will. The Plaintiff seeks a Declaration that she is the true legal owner of the said property and consequential Orders incidental to such transfer and an Injunction restraining the Defendants from including the land in any of property of which the Deceased was seized and from proving the deceased Will dated 2 ^nd July 1993 and taking steps to apply for a grant of letters of administration in respect of the said Estate of the Deceased.

3 The Plaintiff's Statement of Claim alleges inter alia:

• 8. That by Agreement with the Plaintiff and the said Vendor, a Vendor's Mortgage in the sum of $1,383.15 was available to the Plaintiff in her capacity as purchaser in respect of the purchase price, being Mortgage No. 168775 endorsed on Certificate of Title for the said land to Century Mortgage Company Limited, a limited liability company, to secure the said sum of One Thousand, Three Hundred and Eighty-three Pounds Fifteen Shillings (£1,383,15s) with interest which said mortgage was transferred to the Insurance Company of Jamaica on the 30 ^th September 1963 and was by transfer No. 203451 dated 22 ^nd day of February and registered on the 16 ^th day of March 1965 transferred to Rema Construction Limited, the Vendors of the said land.

• 9. That on application for the said mortgage, the Mortgagee by and through an officer of its company informed the Plaintiff that by reason of her age and lack of employment outside of the house she should place the name of one of her children on the said application form for the said mortgage in order to secure the said mortgage loan and that she was further instructed that title for the said land should be issued in the name of the said child. That at all material times the mortgagee well knew that the Plaintiff was the sole contributor to the said purchase moneys. That she was further informed that both in law and in fact she would still be regarded as the true owner of the said land.

• 10. That the Plaintiff duly informed the deceased of the foregoing requirement and that it was agreed between the Plaintiff and the Deceased that the Deceased name should be substituted for the Plaintiff's in application for the said mortgage and that title for the said loan should be issued in the name of the Deceased and transfer registered in her favour but she should not thereby become bestowed with legal and beneficial interest in and in fact the same would remain vested in the Plaintiff as the true legal owner and it was further agreed after payment and discharge of the said mortgage the Deceased before her said demise would make and execute transfer and register Title in favour of the Plaintiff of otherwise execute a last Will and Testament giving and devising the said land to the Plaintiff absolutely to the exclusion of any other person or body, in order to facilitate registration of Title in the name of the Plaintiff.

• 11. That during the lifetime of the deceased, notwithstanding settlement and discharge of the said mortgage, she failed/refused/neglected to make and execute any transfer or to register Title in favour of the Plaintiff or to otherwise transfer the said land to the Plaintiff.

4 The Defendants filed on the 17 ^th May 1999 a Defence in which it is contended inter alia;

• 3. Paragraphs 5 to 13 inclusive of the Statement of Claim are denied. The Defendants shall say further that all the estate and interest in the said land was the deceased's. Further, the deceased obtained a mortgage for the said land and paid the mortgage payments therefor.

• 4. Further and/or alternatively, the Plaintiff's cause of action did not accrue within twelve years from the commencement of this action and is statute barred.

• 5. Further and/or alternatively, the Plaintiff is barred by her own laches and acquiescences from maintaining any claim to the said land.

5 The Plaintiff had worked as a postmistress after leaving school to the time of her marriage in 1926, at age 21. She was never employed after that date. After her marriage she lived at several addresses in Kingston with her husband, who she describes as being "a bus owner, he had several buses". The Plaintiff testified that she and her husband stopped living together in 1970, and that he died in 1975. However, she states that at the time that the house was purchased in 1962, she thought he was then in Panama. The Plaintiff and her husband had six children, one of whom, Clarence, was killed in the Kendal Rail Disaster in " 1956 or 1957". The Second Defendant, Gwendolyn, the deceased, who died in July 1993, was the Plaintiff's second child. There was one adopted child.

6 The family aptly demonstrates the migratory trends of the twentieth century Jamaican family. Of the surviving children, the eldest, Edith Senior resides in the United States. Lola Birthwright lives in Canada. Benjamin Simmons resides in England. Madge Wright resides in Connecticut, in the United States. The last child, Lidgett, being the only child of the Plaintiff who has remained in Jamaica. Of her children, Lola and Gwendolyn were both nurses. Benjamin was a mechanical engineer, and Edith a seamstress.

7 The Plaintiff was supported largely on the remittances from abroad of her children and brother. More directly in respect of the purchase of 22 Cairncurran she testified that she had received Seventeen Pounds (£17) from the insurance company and Four Pounds (£4) from "visiting sympathetic friends" in respect of her son Clarence who had died in the rail crash at Kendal. She testified that she had owned lands at Balcrest. Additionally...