Supreme Court
Action No. 251 of 1980
30th March, 1983
Alcantara, J., O.B.E.

Mr. Denys Barrow for the Plaintiff.
Mr. Wilfred Elrington for the Defendant.

Real Property - Equity - Irrevocable license for life - effect of payment of valuable consideration for license - assignment of irrevocable licence with knowledge of licencor.

J U D G M E N T

Estelline Taylor, the Plaintiff, is a widow. Her husband, Richard Taylor, died intestate on the 27th May, 1975. Amongst the property he left he had the title to a piece of land consisting of 5 acres 3 roods 14 poles situated on the Stann Creek Valley Road. This land was first acquired by Richard Taylor on a location ticket in 1957 which was much later, on the 17th April, 1973, converted by Minister's Fiat into a fee simple estate. I find as a fact that he only paid for the property $29.19. It was raw bush at the time. Today, after it has been developed and exploited as a citrus orchard, it is worth at least $10,000.

In 1963 one Porfirio Rodriguez entered into the picture. He was allowed by Richard Taylor to build a house in and cultivate two acres of the said land for his own benefit. The Plaintiff's contention is that this was a gratuitous action by Richard Taylor. The Defendant's contention is that it was a business arrangement and has produced a document, a receipt, to support his case. The receipt reads as follows: -

"15th November, 1964

Received of Porfirio Rodriguez, the sum of Twenty five dollars being amount paid for a piece of land on the Stann Creek Valley Road.
$25.00

Richard Taylor."

The Plaintiff's evidence is that the signature on the receipt is not that of her husband and that no receipt was ever given. She is in fact alleging fraud without having pleaded it. Although the Court would disregard any contention of fraud not pleaded this is not necessary as I find as a fact that the receipt is a genuine receipt. Not only is it genuine on the face of it but its existence is supported by the evidence to that of the Plaintiff. Porfirio Rodriguez has also given viva voce evidence of the transaction leading to the execution of the document. Such evidence is admissible, but admissible only, to explain the document, not to contradict it. The evidence of Rodriguez is that he paid $25 as part payment for the sale to him, when Richard Taylor perfected his title, of an unspecified number of acres at $50 per acre. This I must disregard. Not only is it contrary to the document but not in conformity with the Defence as pleaded which alleges $50.00 for all the two acres. The document to my mind is clear on this matter. $25 was paid for the land. No mention of part payment or of a conveyance at a later stage. Apart from the question of admissibility of evidence I find that the evidence of Porfirio Rodriguez is not reliable on this point.

For reasons which have not become clear to me the relationship between the Taylors and Rodriguez deteriorated to the extent that there was an abortive Court proceedings in the Stann Creek Magistrate's Court to oust Rodriguez from the land. Regardless of this Rodriguez continued to live on the land and exploit the two acres of citrus fruit.

After the death of the Plaintiff's husband, Porfirio Rodriguez moved off the land, but before so doing he informed the Plaintiff that he was selling to the Defendant, Hipolito Gongora. In fact Gongora went to the Plaintiff to inform her he had bought the land. There is an agreement in writing to this effect dated 14th February, 1975. The land which the Defendant is supposed to have bought is now occupied by a daughter of the Defendant.

There is no doubt that the Defendant bought the land from Porfirio Rodriguez with notice. His own evidence on the witness box is conclusive as to this. This is what he had to say in chief.

"In January, 1975, Rodriguez came to my house………Asked me if I wanted to buy piece of land at 71/2 miles. Then I asked him if land is his property. He told me that he did not get papers just yet. Told me that he had a misunderstanding with Mr. Taylor about the two acres of land, that he had advanced to Mr. Taylor already $25………

Rodriguez explained he wanted to sell land……. I want to sell piece of land to you because I do not want to get myself involved. If I continue living in that place I am going to shoot those people."
There are a number of issues to be decided.

A. What interest, if any, did Porfirio Rodriguez acquire in the land in question?

B. If he did acquire an interest, was it one which he could dispose of?

C. What interest, if any, has the Defendant?

Hipolito Gongora, is at present on the land. Counsel has brought to my attention the case of Corcho and Ferguson v Campbell 16 W.I.R. 308 for the purpose of referring to the facts in two leading cases of Inwards v Baker (1965) 1 AER 446 and Errington v Errington & Woods (1952) 1 AER 149.

Those two cases were considered by this Court in the case of Gloria Orellana v Wellington Busch (31st March, 1982) subsequently affirmed by the Court of Appeal (No. 7 of 1982). That case is not dissimilar from the present one, apart from the payment of $25. In that case the Defendant was allowed to build himself a house on land belonging to the Plaintiff's mother in return for personal services. The Court held that the Defendant had, in equity, a personal licence for life to live in the house he built.

The guiding principle is that stated by Lord Denning in the case of Inward v Baker where he laid down the following rule -

"It is quite plain from these authorities that if the owner of land requests another, or indeed allows another, to expend money on the land under an expectation created or encouraged by the landlord that he will be able to remain there, that raises an equity in the licensee such as to entitled him to stay. He has a licence coupled with an equity."

In this case before me, I find that at the very least Porfirio Rodriguez has, in equity, an irrevocable personal licence for life to make use of the land. The question which arises is did he acquired more than that because of the payment of $25. I am of the opinion that this was a business arrangement. The receipt signed by Richard Taylor is conclusive as to that. But what else can the Court gather from the receipt and the surrounding circumstances? The Defendant in his counterclaim, paragraph 11 pleads as follows: -

"The Defendant avers that he is entitled to the said two acres of land by virtue of the said written agreement dated 14th day of February, 1975"

and claims,

"(a) An order compelling the Plaintiff to execute a proper conveyance of the said two acres of land to the Defendant.

(b) Further and in the alternative the Defendant claims the value of the improvements which he made to the said two acres of the land and the value of the crops and fruit trees which he planted thereon."

The second remedy requested is a non-starter. Not only is there no foundation for it on the pleadings, but there is not a shred of evidence that the Defendant had made any improvement.

Insofar as the first remedy is concerned the Defendant does not spell out what interest or estate he is claiming. A licence, a leasehold estate or a fee simple? By using the word 'conveyance' my impression is that he is claiming the fee simple.

One thing is clear, on the 15th November, 1964, the date of the receipt, all the Porfirio Rodriguez got was a licence. The Plaintiff's husband by virtue of the location ticket had only a licence and the principle that what you have not got you cannot give is applicable to this situation. My considered opinion is that Porfirio Rodriguez bought an irrevocable licence to the 2 acres of land binding the Plaintiff's husband and any of his successor in title. The inference I draw from the facts of the case is that the licence was to continue during the life of Porfirio Rodriguez only, but that he was not prohibited from dealing with the land in whatever manner he wanted, even to the extent of assigning the licence to someone else. The payment of the $25 leads me to that conclusion.

Issues A and B are therefore answered. Porfirio Rodriguez acquired an irrevocable licence for the term of his natural life in the 2 acres in question. Although a bare licence cannot be transferred or sold there is nothing to prevent a licence coupled with an interest from being assigned to someone else.

As to issue C, my view is that although the Defendant has no legal estate in the land under dispute he has an interest in equity. Not only is his possession and that of his daughter lawful by virtue of his arrangement with Porfirio Rodriguez, under whom he claims, but he has a right to make use of the land as a licence.

The Defendant is not entitled to the remedies he asks in his counterclaim. Nonetheless I would be prepared to make a declaration that he holds the land as a licencee during the term of the natural life of Porfirio Rodriguez.

The result is that the Plaintiff fails in her claim and the Defendant in his counterclaim. In the circumstances I will make no order as to costs.

----------OO----------