Miller-Weston v Miller and Another
| Jurisdiction | Jamaica |
| Judge | McDONALD-BISHOP, J. (Ag.) |
| Judgment Date | 22 June 2007 |
| Judgment citation (vLex) | [2007] 6 JJC 2201 |
| Date | 22 June 2007 |
| Court | Supreme Court (Jamaica) |
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
REAL PROPERTY - Joint tenancy - Severance - Declaration for
COMMERCIAL LAW - Debt - Default judgment - Application to enforce
THE FACTS
1. The claimant brought an action against the two defendants, who are husband and wife, to recover money she allegedly lent to them in respect of property jointly owned by them as joint tenants at 53 Woodland Way, Coopers Hill, St. Andrew.
2. On October 18, 2002, the claimant obtained default judgment against the first defendant in the sum of $2,850,559.00 plus interest thereon at 12% per annum from the date of the judgment to date of payment and costs in the sum $16,000.00. The judgment debt remains unsatisfied by the first defendant while proceedings between the claimant and the second defendant are yet to be resolved.
3. Accordingly, by Notice of Application dated June 28, 2006, the claimant now seeks to enforce the said judgment against the first defendant. To this end, the claimant seeks, inter alia, the following orders:
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(i) A declaration that the joint tenancy between Paul Miller and Leithia Miller (a.k.a. Peaches Miller) in relation to the property known as Lot 53 Woodland Way, Coopers Hill in the parish of St. Andrew, registered at Volume 1046 Folio 83 of the Register Book of Titles, has been severed.
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(ii) That the property be sold by private sale or public auction as a means of enforcing the judgment obtained against the first defendant, Paul Miller, on October 18, 2002 and entered in Binder 731, Folio 302.
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(iii) That upon a sale of the property the debt owed to the claimant inclusive of interest and costs be repaid from the first defendant's share of the proceeds of sale.
4. By means of a document headed 'AGREEMENT AND CONFIRMATION' dated January 16, 2006, the first defendant confirmed his indebtedness to the claimant in respect of both the principal sum and the interest. He also confirmed that the loan was solicited for the purpose of preventing the foreclosure on the property in question and asserted that "accordingly the debt is a charge on the said property." He further agreed to make the best effort to sell the property at the earliest date at a price as close to the market value as is available and to repay the claimant the debt owed along with other attendant costs. The second defendant was not made a party to this agreement.
5. The first defendant also executed a document headed 'INSTRUMENT OF TRANSFER FOR CHANGE OF TENANCY' dated June 23, 2006. In this document he purported to have the joint tenancy changed to a tenancy in common. Again, it must be noted that the second defendant was not a party to the execution of this document. It also was unilaterally executed by the first defendant.
6. On the strength of the declarations contained in the foregoing documents, it was submitted on the claimant's behalf that certain declarations made by the first defendant, coupled with assertions made by the second defendant in her affidavit in these proceedings, are enough to sever the equitable joint tenancy. Mrs. Samuels-Brown submitted that severance of the joint tenancy occurs if either of the tenants enters into any transaction which severs the joint tenancy and converts it into a tenancy in common, as for example, where one tenant alienates his share to another person or if one of the tenants acquires an interest greater in quantum than that held by the other tenant. Mr. McBean on behalf of the second defendant, however, contended that there is no severance of the joint tenancy in the circumstances of the case.
THE ISSUE
7. The issue to be ultimately determined is whether the joint tenancy ownership of the defendants in the common property has been severed so that an order for sale can properly be made to enforce the judgment against the first defendant. This question would, of necessity, involve an analysis of the legal effect of any acts done or declarations made by the joint tenants in respect of the common property.
THE LAW
8. It is well established that the essence of joint tenancy is that each joint tenant is 'wholly entitled to the whole' of the estate which is the subject of the co-ownership. In joint tenancy, no joint tenant holds any specific or distinct share himself, but each is, together with the other joint tenant or tenants, vested with the entire interest in the property in question. In the words of Bracton, 'each joint tenant totum tenet et nihil tenet: each holds everything and yet holds nothing.' They hold as one single owner as against the whole world. There is the presence of the four unities - unity of title, possession, interest and time. In that regard, none of the defendants in this case would have any distinct share in the property in question unless there is severance.
9. The right of survivorship (or jus accrescendi) is described as the 'grand and distinguishing' incident of joint tenancy. The right of survivorship, however, may be destroyed by severance of the joint tenancy during the life time of the joint tenants. This would mean a severance of one or the other of the essential unities. When this occurs, the joint tenancy becomes a tenancy in common and each party is entitled to a distinct share. With severance, each party may deal with his interest as a separate and distinct share and the right of survivorship is totally and irrevocably destroyed. It follows then that there has to be a severance of the joint tenancy in this case before there can be a distinct 'share' of the first defendant to be made subject to enforcement of the judgment against him.
10. It must be noted at the very outset that the U.K. Law of Property Act, 1925 does not apply to our jurisdiction and so our position on severance has to be guided by the pre-1926 law of the U.K. In this regard, a consideration of the issue for determination must begin with the application of the rules authoritatively laid down in the celebrated dictum of Sir Page Wood V-C in Williams v Hensman (1861) vol. 70 E.R. 862 at 867. This judgment has been widely accepted as the applicable pre-1926 law on the question of severance of a joint tenancy. The applicable principles were stated thus:
"A joint tenancy may be severed in three ways. In the first place, an act of anyone of the persons interested operating upon his own share may create a severance as to that share. The right of each joint tenant is a right by survivorship only in the event of no severance having taken place of the share which is claimed under the jus accrescendi. Each one is at liberty to dispose of his own interest in such manner as to sever it from the joint fund-losing, of course, at the same time, his own right of survivorship. Secondly, a joint tenancy may be severed by mutual agreement. And in the third place, there may be severance by any course of dealing sufficient to intimate that the interests of all were mutually treated as constituting a tenancy in common. When the severance depends on an inference of this kind without any express act of severance, it will not suffice to rely on an intention with respect to the particular share, declared only behind the backs of the other persons interested. You must find in this class of cases a course of dealing by which the shares of all the parties to the contest have been effected, as happened in the cases of Wilson v Bell (1843) 5 Eq. R 501 and Jackson v Jackson (1804) 9 Ves. Jun, 591."
11. In O'Connor Estate v Lindsay (1987) 51 Man R. 2(d) 65, the Manitoba Court of Queen's Bench (Canada), after re-affirming the Williams v Hensman's formulations, stated: "these principles have been applied in many cases, the outcome generally speaking, being determined by each court's finding of fact." The resolution of the issue in this case is thus one of fact and the onus of proving that there is a severance lies on the claimant who is making such assertion (Re Denny (1947) 177 L.T. 291, at 293). The facts must, therefore, fit within at least one of those rules before a finding of severance in equity can properly be made. Apart from those rules, the other statutory methods of severance applicable in the U.K. are not of any relevance to these proceedings.
ANALYSIS OF THE LAW AND THE FACTS
Is there an act severing the joint tenancy
12. The first rule of Williams v Hensman stipulates that any act of any of the joint tenants operating upon his share is enough to sever his share. The authorities all establish that this is usually by alienation or by any act that affects the beneficial interest to the extent that the right of survivorship in favour of that joint tenant is precluded. It is, therefore, well established that a party may alienate his interest inter vivos thereby creating a tenancy in common.
13. In this case, Mrs. Samuels-Brown submitted that when the first defendant acknowledged his debt to the claimant and indicated his intention to repay her, his interest in the property then vested in the claimant as creditor. The thrust of counsel's argument is, basically, that by those acts and declarations of the first defendant, his interest in the property vested in the claimant as a matter of involuntary alienation and that an analogy can be drawn with the situation where a joint tenant is adjudicated bankrupt. In support of this proposition, she prayed in aid the English cases, Re Dennis [1992] 3 All E.R.; Re Gorman [1990] 1 WLR 616 and Re Pavlou (A Bankrupt) [1993] 1 WLR, 1046.
14. In Re Dennis, a husband and wife...
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