Glenton McFarlane v Hopeton Ferguson

• Jurisdiction: Jamaica
• Judge: Jackson-Haisley, J.
• Judgment Date: 10 February 2017
• Neutral Citation: [2017] JMSC Civ 21
• Docket Number: IN THE CIVIL DIVISION CLAIM NO. 2012HCV06735
• Court: Supreme Court (Jamaica)
• Date: 10 February 2017

Between

Glenton McFarlane

Claimant

and

Hopeton Ferguson

Defendant

[2017] JMSC Civ 21

Coram:

Jackson-Haisley, J. (AG.)

IN THE CIVIL DIVISION CLAIM NO. 2012HCV06735

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Sale of Land by Vendor to Two Persons — Deed of Conveyance — Failure to Record Deed — Bona Fide Purchaser for Value Without Notice — Sections 66 and 74 of the Conveyancing Act — Sections 2, 6 & 7 of the Records Deeds, Will Letters Patents Act — Valid Sale — Rescission of Contract — Late Recording

Ms. Stacey Mitchell instructed by Frater, Ennis & Gordon for the Claimant

Mr. George Traile and Mrs. Diane Phillip-Traile instructed by Phillip, Traile & Co. for the Defendant

IN CHAMBERS

1 On the 14 ^th day of July 1992, the Claimant Glenton McFarlane purchased one and a quarter acre of land in Rock Spring, Durham Trelawny from his aunt Phyllis McFarlane for the sum of $5000.00. According to him, the land was family property and had been in the McFarlane family for generations. In fact it was on this land that he spent the formative years of his life. The vendor Phyllis McFarlane was not only his aunt but she was also the person who raised him and the only mother he has ever known. Although he has never farmed the property himself, he asserts that other members of the McFarlane family had farmed the property for many years. At the time of the purchase he was a farmer living in the same community, but now he is a consultant engineer and resides in England. He gave his evidence from his home in England by video link.

2 Although this property was unregistered and the purchase was by way of a Conveyance, initially he took no steps to register his interest. On the 30 ^th day of March 2009 the vendor Phyllis McFarlane entered into an Agreement of Sale with the Defendant Hopeton Ferguson, a farmer of Rock Spring selling him a quarter of an acre of the same parcel of land for the sum of $125,000.00. Sometime after he had paid the sum and signed the Deed of Indenture, his lawyer was contacted and advised that the property had previously been sold.

3 It was not until the 14 ^th day of February 2012 that the Claimant registered the Deed of Indenture in respect of the land. He is now seeking to assert his rights to the property and so on December 4, 2012 he filed a Fixed Date Claim Form, seeking a Declaration that he is the legal owner and entitled to possession of land situate at Rock Spring, Durham in the parish of Trelawny by virtue of a prior purchase of the land from Phyllis McFarlane evidenced by Conveyance dated the 14 ^th day of July 1992, duly stamped and registered at Liber New Series No. 10228 Folio 53 on the 14 ^th day of February 2012. Further, that the Defendant's subsequent agreement to “purchase” the said land dated the 30 ^th day of March 2009 is hereby rescinded and is null and void and of nil effect and that the purchase price of $125,000.00 according to the executed Agreement for Sale, paid by the Defendant has been duly refunded to the Defendant/Purchaser, but the Defendant has refused to deliver up possession of the said land.

4 The specific orders sought are as follows:

• (i) A Declaration that he is the lawful owner of the said land;

• (ii) An Order for rescission of the Sale Agreement between the Defendant and Phyllis McFarlane dated 30.03.2009;

• (iii) An Order for delivery up of possession;

• (iv) An Order to amend the tax roll, valuation number 064-05-008-018 to remove the name of the Defendant there from; and

• (v) Costs.

5 The Claimant's Application is supported by an Affidavit also filed on December 4, 2012. He indicates that by way of a Conveyance dated the 14 ^th day of July 1992 and recorded on the 14 ^th day of February 2012, he purchased and occupied the land owned by Phyllis McFarlane. The Conveyance is exhibited to his Affidavit. It reflects a purchase price of $5000.00.

6 In his Affidavit he indicates that he became aware of a purported purchase by the Defendant of a quarter acre of the said land from Phyllis McFarlane on the 30 ^th day of March 2009, for the sum of $125,000.00. Also exhibited to his Affidavit is a Deed of Indenture signed by Phyllis McFarlane on the 13 ^th day of February, 2009 which reflects the sale of the land to the Defendant. On finding out about this purported sale he says he instructed his attorneys-at-law to communicate with the Defendant's attorney-at-law and to enquire about the alleged purchase and to request a status report of the said “purchase”. This he says was done by his attorney-at-law and is evidenced by a letter, a copy of which is exhibited to his Affidavit.

7 According to the Claimant, Phyllis McFarlane returned the money paid by the Defendant to him by way of a Manager's cheque payable to him, following which the Defendant's attorney-at-law wrote to the Defendant by letter dated the 6 ^th day of January 2011, enquiring whether or not he would be willing to accept a return of the purchase price. The Claimant indicated that his attorneys-at-law also wrote to the Defendant seeking an amicable delivery up of possession failing which they would initiate a Court action. This letter is also exhibited to his Affidavit.

8 The Claimant asserts his belief that having purchased the land in 1992 and taking possession thereof he has a prior right over a subsequent purchaser of the land from the same vendor, as the subsequent purchaser has only an equitable interest which his prior interest would over reach whether or not the subsequent “purchaser” had notice thereof. Further, that the Defendant failed to satisfy himself that the land was owned by the vendor, neither did he exercise his right to rescind once he discovered that the vendor had no title to sell. Further, that the Defendant did not stamp the Agreement for Sale or register the Conveyance in accordance with the law.

9 He also exhibits a Transfer Tax Receipt in the sum of $1800.75 representing 7.5% of the purchase price for the land transferred from Phyllis McFarlane to him. This was signed on the 5 ^th day of November 1992.

10 During cross-examination the Claimant gave evidence that he did not personally live on the land but that he had a relative who was on the land. It was suggested to him that no relative of his ever occupied or farmed the land and he responded that from the 1900s the land was farmed officially and unofficially by the McFarlanes and that although he did not personally farm the land, traditionally whoever lived in the family house would farm the land.

11 The Defendant filed an Affidavit in Response on July 8, 2013 and he asserts that on the 30 ^th day of March 2009 he purchased from Phyllis McFarlane all that parcel of land, part of Rock Spring in the parish of Trelawny, containing by estimation one quarter of an acre, for the sum of $125,000.00 and he has exhibited a copy of the Agreement of Sale. He indicates that after paying the full purchase price the vendor executed a Deed of Indenture, thereby transferring the land to him and he has also exhibited a copy of the said Deed. Further, that he was put in possession of the land by the vendor on or about the 1 ^st day of April 2009 and that on the 4 ^th day of December 2009 the vendor executed a Notice of Change of Possession of Land to Amend the Property Tax Roll to reflect the change in ownership and possession of the said land. A copy of the Notice of Change of Possession is exhibited to his Affidavit.

12 The Defendant states further that before purchasing the said land he did all that was necessary as a prudent purchaser inclusive of but not limited to checking to see if the land was vacant, checking the tax roll to see who was the owner of the land and checking the Island Record Office and that his checks revealed that the vendor was the owner and that the Claimant had not recorded his purchase. Further, that the land was vacant before he entered into the Agreement for Sale and remained so until he was put into possession and that he has been in open, continuous and undisturbed possession of the said land from about the 15 ^th day of April 2009 to present, reaping the rents and profits arising there from, paying the taxes and exercising all acts of ownership. In addition, he indicates that he has also commenced the construction of a concrete dwelling house on the property.

13 He adds further that he went abroad on the Farm Work Programme on the 10 ^th day of July 2009 and returned on the 18 ^th day of November 2009 following which checks to his bank account at the Bank of Nova Scotia revealed that a sum of $100,000.00 was lodged to his account without his authorisation and he has exhibited the relevant pages of his Jamaican Passport and his Nova Scotia bank book to support his assertion. He indicates that he made enquiries and discovered that this unauthorised lodgement was made by Patricia McFarlane, a relative of the vendor, and so he immediately withdrew the said money and returned it to Patricia McFarlane.

14 In cross-examination he indicated that his attorney-at-law made the necessary checks and that she told him that the paper work had to go to Montego Bay and if somebody bought the land before him it would stop right there. Further, that about two weeks later she called him and told him that nobody owned the land and so he took the papers to the tax office and paid the land taxes and he was told that nobody owned the land before him. He however indicated that he did not personally check with the Island Records Office.

15 He claims further that there is no privity of contract between the Claimant and himself and that he is a bona fide purchaser for value without notice.

SUBMISSIONS ON BEHALF OF THE CLAIMANT

16 Counsel for the Claimant submitted that with respect to unregistered land, it is the Deed or Conveyance instrument that effectively transfers ownership of property from a vendor to a purchaser and that in light of the...