Tully v Robinson
| Jurisdiction | Jamaica |
| Judge | Wright, J.A.,Downer, J.A.,Wolfe, J.A. |
| Judgment Date | 13 July 1992 |
| Neutral Citation | JM 1992 CA 63 |
| Docket Number | Civil Appeal No. 30 of 1989 |
| Court | Court of Appeal (Jamaica) |
| Date | 13 July 1992 |
Court of Appeal
Wright, J.A.; Downer, J.A.; Wolfe, J.A. (Ag.)
Civil Appeal No. 30 of 1989
Mrs. M. E. Forte for the appellant.
John Vassell and Miss Avis Somers far the respondent.
Contract - Sale of Land — Definition of words “more or less” against a declaration and orders made by Gordon J upon an originating summons brought by a purchaser for property construction — Contract for sale of property between both parties — Land to be sold — One hundred and thirty five acres to be sold — Found out to be only ninety four and one half acres — Purchaser sought to rescind the contract — words, more or less — Definition of — Effect of deficiency — Purchaser is entitled to specific performance with abatement in the purchase price — Appeal dismissed and judgement of court below affirmed.
The is an appeal by the vendor of certain property against a Declaration and Offers made by Gordon, J. upon an Originating Summons brought by the purchaser for the proper construction of a contract for sale between both parties. The Originating Summons reads as follows:
“Let the defendant DULCIE ERMINE TULLY of 17 Saint Andrew Park, Kingston 10 in the Parish of Saint Andrew within Eight days of the service of this Summons inclusive of the day of such service cause an Appearance to be entered on her behalf to this Summons issued on the Application of Eric Clive Robinson of Apartment 10, Ocean Towers, Ocean Boulevard, Kingston Mall in the Parish of Kingston for the following reliefs:
“1. for a Declaration that upon a proper instruction of a contract of sale of lands part of Chancery Hill, Mammie Hill and Shirley Castle in the Parish of Portland dated 10th November, 1985 and entered into between the plaintiff as Purchaser and the defendant as Vendor the plaintiff is entitled to perform and enforce the said contract by the payment of the purchase price stipulated in the said contract less such sum as he is adjudged entitled to as compensation arising from a material discrepancy between the acreage stipulated in the contract namely ‘130 acres, more or less’ and the acreage on the said land was found on survey to contain, namely 94 1/2 acres.
2. For an injunction to restrain the defendant from selling, charging or dealing with the said lands otherwise than as required by or in accordance with the said contract of sale.
Dated 22nd May, 1987.”
It was not until January 10th, 1989, that the Summons was heard on January 11th, the following determination was made:
“1. Declared that upon a proper construction of a contract of sale of lands part of Chancery Hill, Mammie Hill and Shirley Castle in the parish of Portland dated 14th November, 1985 and entered into between the plaintiff as Purchaser and the defendant as Vendor the plaintiff is entitled to perform and enforce the said contract by the payment of the purchase pence stipulated in the said contract viz. $260,000.00 less the sum of $71,000.00, the amount to which the plaintiff is entitled to as compensation arising from a material discrepancy between the acreage stipulated in the contract, namely ‘130 acres, more or less’ and the acreage the said land was found on survey to contain, namely, 94 1/2 acres.
2. That the defendant is restrained from selling, charging or dealing with the said lands otherwise than as required by or in accordance with the said contract of sale or from pursuing further any existing contract or sale in relation to the said land otherwise than to the plaintiff:”
The contract which called for construction is in the following terms:
“VENDOR: DULCIE ERMINE TULLY of No. 17 Saint Andrew Park, Kingston 10, in the Parish of Saint Andrew, Retired Teacher, Executrix of the Estates of CYRIL LORENZO SHIRLEY, Deceased and MIMILI ERMINTRUDE SHIRLEY, Deceased.
PURCHASER: ERIC CLIVE ROBINSON of Apartment 10, Ocean Towers, Ocean Boulevard, Kingston Mall in the Parish of Kingston, Aircraft Pilot and/or his nominee.
DESCRIPTION OF PROPERTY: ALL THOSE parcels of land part of Chancery Hill, Mammie Hill and ShirIey Castle in the Parish of Portland, in the ownership of the Estates of CYRIL LORENZO SHIRLEY, Deceased, and MIMILI ERMINTRUDE SHIRLEY, Deceased, containing by estimation One Hunted and Thirty (130) Aces more or less, and butted and bounded on the North by lands owned and/occupied by the Estates of the late WALTER HARRISON and ROBERT HARRISON, Deceased, and by the river known as ‘Miss Bell’, on the South by lands owned and/or occupied by the Estate of the late WALTER HARRISON, Deceased, and by lands owned and/or occupied by LEON WHYLIE, on the West by lands owned and/or occupied by me Estate of the late ALFRED DAWKINS, Deceased, and by lands owned and/or occupied by VINCENT DENNIS, and on the East by lands owned and/or occupied by LEON KING, and by lands formerly owned and occupied by the late ENOS SHIRLEY, Deceased or howsoever otherwise the said land the subject of this transaction, may be butted, bowled, known, distinguished or described, and being the lands recently traversed by the Vendor and the Purchaser, the exact area of which lands is to be determined by Survey.
PURCHASE MONEY: TWO HUNDRED AND SIXTY THOUSAND DOLLARS ($260,000.00).
HOW PAYABLE: A deposit of $40,000.00 on the execution hereof payable to the Vendor's attorney-at-law as Stakeholder, and the balance on or before the 28th day of February, 1986.
COMPLETION: On the issue of a Registered Title for the lands the subject of this Agreement in the name of the Purchaser and/or his Nominee.
POSSESSION: Possession hereunder will be given to the Purchaser subject to existing tenancies and/or occupancies, on payment of the balance purchase monies and Purchaser's moiety of the costs herein.
TAXES, WATER RATES, RENT, ETC.: To be apportioned as of the date of Possession.
TRANSFER TAX: To be borne by the Vendor.
TITLE AND COSTS OF TRANSFER: Registered Title under the Registration of Titles Act. The cost of Survey herein are to be borne solely by the Purchaser, and all other costs of and incident to the issue of a Registered Title as aforesaid, and of an incident to effecting Transfer hereunder are to be borne equally by the Vendor and the Purchaser.
INCUMBRANCES, RESERVATION, RESTRICTIONS & EASEMENTS: Free from encumbrances other than the existing tenancies and/or occupancies referred above.
CARRIAGE OF SALE: Vendor's attorney-at-law, R.S. Fraser, Jr. of No. 16 North Avenue, Kingston 10.
PURCHASER'S ATTORNEY-AT-LAW: Messrs. Dunn Cox and Orrett (Mrs. Janice Causwell) of No. 46 Duke Street Kingston.
SPECIAL CONDITIONS:
(1) It is understood and agreed between the parties hereto that the lands which are being conveyed under the provisions of this Agreement are those hereinbefore described and the parties further agree that the purchase price herein is payable without reference to the quantum of land being conveyed, and that the said purchase price will not be variable in any manner whatsoever in the event that a subsequent survey of the said lands discloses an increase or decrease in the area of the same stated herein.
(2) The parties hereby agree that all the purchase monies paid hereunder, less such of the same as is required for stamp duty and otherwise to implement the provisions of this Agreement, will be held by the Vendor's attorney-at-law in an interest bearing Escrow Account until Completion as defined herein, and that pending completion, all interest accruing from such account will be for the sole benefit of the Vendor.
(3) The Vendor hereby undertakes execute all documents, and to do and perform all other acts and things necessary to secure the issue of a Registered Title for the lands being conveyed hereunder the name of the Purchaser and/or his Nominee.
(4) The attorney's fees for preparing this Agreement for Sale fixed at the sum of FOUR HUNDRED DOLLARS ($400.00) shall be home by the Vendor and the Purchaser equally and each party shall bear his share thereof on the signing of this Agreement.”
The inescapable question is why was it necessary to resort to litigation to secure the construction of what appears to be a straightforward contract? Resort must be made to the available evidence to find the answer to that question. The vendor did not file any affidavit. Accordingly all that is known is what is contained in the purchaser's affidavit.
The Purchaser states that he became aware of the property in question when he saw an advertisement in the “Daily Gleaner” for the sale of a property containing one hundred and forty-five acres but no price was stated. Contact was made with the vendor and together with the caretaker, one Mr. Dennis, they travelled the boundaries while the vendor identified to him the extent of the land. When he sought proof of the acreage the vendor was unable to produce any but said that she paid taxes on one hundred and thirty-five acres. It was agreed after discussion that for the purpose of determining the price she would treat the land as containing one hundred and thirty acres and thus the cost of survey estimated at ten thousand dollars ($10,000) would be accommodated by the value of the five acres, that is, Two Thousand Dollars ($2,000) per acre. The deposit of Forty Thousand Dollars ($40,000) was duly paid but difficulties arose when the survey, commissioned by the purchaser, disclosed the true acreage to be ninety-four and one half acres, that is, thirty-five and one half less than the estimate given by the vendor around which acreage the contract was formed. The surveyor's letter confirming the result of the survey is dated July 16th, 1986, that is, eight months from the date of the contract. But up to January 27th, 1987, when the purchaser's attorney wrote to the vendor's attorney the under-mentioned letter, the problem posed by the difference in the acreage had not been resolved. Here is that letter:
“Mr. Reginald Fraser, Jnr.
Attorney-at-Law
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