Wills v Elma Roselina Wills

• Jurisdiction: Jamaica
• Judge: RATTRAY. P , BINGHAM, T.A.: , LANGRIN, J.A. (Ag).
• Judgment Date: 01 March 1999
• Neutral Citation: JM 1999 CA 10
• Judgment citation (vLex): [1999] 3 JJC 0109
• Court: Court of Appeal (Jamaica)
• Date: 01 March 1999

IN THE COURT OF APPEAL

BEFORE:

THE HON. MR. JUSTICE RATTRAY, PTHE HON. MR. JUSTICE BINGHAM, J.A.THE HON. MR. JUSTICE LANGRIN, J.A (AG.)

BETWEEN

MYRA WILLS

PLAINTIFF/APPELLANT

AND

ELMA ROSELINA WILLS

DEFENDANT/RESPONDENT

PROPERTY LAW - Adverse possession - Limitation of Actions Act

RATTRAY. P

1 The plaintiff/appellant Myra Wills nee Foster is the widow of the late Alexander George Wills who died on the 28th of December, 1992. She was married to him on the 22nd day of January 1986. The deceased Mr. Wills was previously married in or about the year 1935 to Elma Roselina Wills the respondent which marriage terminated by divorce on the 24th day of May 1985. During the currency of the marriage to Elma Roselina premises 5 Cassia Park Avenue now known as 6 Newleigh Avenue was on the 17th October, 1952 acquired in the joint names of the deceased George Alexander Wills and his wife Elma Roselina. The title to these premises is registered at Volume 836 Folio 35 of the Register Book of Titles.

2 On the 25th of November, 1964 the late George Alexander Wills acquired premises 84 Sunrise Crescent, St. Andrew registered in his name at Volume 986 Folio 295 of the Register Book of Titles. On the 22nd of February, 1966 these premises were transferred by George Alexander Wills into the names of himself and Elma Roselina, his wife. On the 14th September, 1966 a mortgage to secure Two Thousand Six Hundred Pounds with interest was duly registered against the property. This mortgage was discharged on the 6th of March 1972. It is these two properties which are the subject of the Originating Summons taken out by the plaintiff/appellant. In this Summons she sought from the court a declaration that during his lifetime the deceased Alexander George Wills acquired an absolute title against Elma Roselina Wills in respect of these premises. In so doing she relies upon the provisions of sections 3,4,9 and 14 of the Limitation of Actions Act of Jamaica.

3 The plaintiff/appellant maintained in an affidavit that in 1973 at the request of the deceased Alexander George Wills, she went to live at premises 84 Sunrise Crescent where the deceased resided "in order to nurse, take care of him and be his companion". She purports, on what she was told by her late husband to establish his separation from his former wife Elma sometime between 1970 - 1972. In support of this allegation of separation she exhibits a letter from the Canadian Immigration Authorities to her husband dated 9th August, 1974 relating to his being sponsored by his son for immigration into Canada in which the Attaché among other documents sought requested "separation papers". This of course does not assist in any way in establishing a separation of the deceased Alexander George Wills from his then wife the respondent Elma Roselina Wills.

4 She further alleges that Elma Wills migrated to the United States of America and lived there for upwards of 25 years. During that time the Newleigh Avenue property was rented out as well as the Sunrise Crescent property. In 1992 a recovery of possession action was brought against the Newleigh Avenue tenants. It is noted that the particular claim recites George and Myra Wills as the plaintiffs, and describes them as the registered owners. Myra of course was not the registered owner of the property but Elma was. She relies on allegations that her husband rented out 6 Newleigh Avenue and a flat at 84 Sunrise Crescent and the proceeds used for his exclusive use and benefit. In the absence of George, being now deceased, in relation to the use of the proceeds this is hearsay. It is also hearsay when she states that the joint owner, that is the respondent received no income from the property for over an 18 year period. The matter seems to have come to a head when as stated in the affidavit she maintains that she was "advised by my attorneys-at-law and verily believed that the joint tenant has instructed attorneys who have contacted my said attorneys and advised the latter that I have no interest in either of the properties and have also contacted the tenants at 6 Newleigh Avenue and advised them not to pay any further rental to me but to pass same to the joint tenant said attorneys and that they intend to serve a notice to put on me to leave 84 Sunrise Crescent at the end of April 1993."

5 Exhibited to the affidavit of one Mavis Evadney Allen who purports to support her contention is a letter dated 18th June, 1963 from Elma to the deceased Alexander George Wills in which she writes:

"From I leave there in 64 I havn't receive any support after so much ill-treatment.

I want my porsion (sic) of the places which is half - also some of the rent from I leave. I have to do it this way for its the only way out as I can see, this is my conclusion."

6 Elma Wills in her affidavit maintained that she made contributions to the mortgage payments at 84 Sunrise Crescent and that 6 Newleigh Avenue was purchased from pooled resources of herself and her husband and that she contributed to mortgage payments over the years. She maintains that she had resided in the United States of America since 1967 with the consent of her husband and lived with her daughter, True. She visited Jamaica on occasions and lived at 84 Sunrise Crescent with her husband. She continued with the mortgage payments on the properties. Her husband and herself lived together in the United States of America for 6 months in 1978, 3 months in 1979 at their daughter's house as husband and wife. Her husband obtained permanent residence status in 1981 and they lived together as husband and wife from 1981 to 1984 when he returned to Jamaica. She exhibited her late husband's United States Social Security Card and "Green Card" to support her claim of his residence in the United States of America.

7 In 1985 she was served with divorce papers, which she did not contest. Notwithstanding this, they afterwards lived together in the United States between 1985-1986. She exhibited a letter dated 3rd January, 1985 addressed to her husband in New York from his Attorney-at-law Mr. Norman Samuels which reads.

"Your wife has entered on appearance in this matter, however she is not interested in fighting the divorce. She wants a portion of the properties which she list as follows:

• 1. 6 Newleigh Avenue

• 2. 84 Sunrise Crescent

• 3. 5 acres of land at Kitson Town

Kindly let me know at your earliest convenience whether you in fact own these properties and if so your attitude towards an amicable settlement."

8 She also exhibited a letter from her Attorneys-at-law to herself which reads as follows:

"The Attorney-at-law acting on your husband's behalf has made an offer to you of $25,000 to satisfy your claims to premises 84 Sunrise Crescent and 6 Newleigh Avenue. Please indicate in writing whether you are willing to accept that sum as a full and final settlement of your claim. ..."

9 Her lawyers advised her not to accept the offer "... as you are on the face of it entitled to a half share of these properties." She maintains in her affidavit that "George and I did not separate until after he served me divorce papers in 1985 and up to 1986 we still had relations."

10 With respect to the proceeds from the rentals she stated;

"The proceeds of the said rentals were used by George but this was because I had permitted it because he was up to 1985 my husband, he was the father of my children and I wished him to have an income from which he could meet the properties expenses and his needs."

11 There is exhibited in the affidavit of Myra, a notice in the Daily Gleaner of 16th February, 1984 by George Wills to the effect that Elma had left home without his consent and he was therefore not responsible for any debt or debts she may contract. In April 1994 the respondent brought an action in the Resident Magistrate's Court Kingston for the recovery of the possession from the appellant of the premises 84 Sunrise Crescent, Kingston 19.

12 What were the findings of the trial judge Orr, J on the Originating Summons with respect to the facts? He stated as follows:

"From the available evidence...