Supreme Court
Action No. 378 of 1981
12th November, 1982
Moe, Chief Justice

Mr. Oscar Sabido for the Plaintiff
Mr. Dean Barrow for the Defendant

Writ of possession of land - Defendant allegedly given authority to remain on land until his death by trustee in possession - Whether trustee in possession had such authority.

J U D G M E N T

On the 30th October, 1980 the Plaintiff purchased a parcel of land situate at 115 Barrack Road or Lot 903, Belize City from Althea Gray Betson and Edith Gray duly appointed by the Court Trustees for sale of the property of Margaret Louise Flowers of whose estate the said Lot 903 formed part. On 4th December, 1981 he brought action to recover possession of the lot from the defendant and two other persons. Judgment has been already entered against the two ether persons.

The defendant says that in 1963 he occupied a house and a portion of Lot 903 on which the house stood rent free and with the consent and approval of Patrick Gray then trustee in possession and beneficial owner of Lot 903. That in 1968 he was encouraged by the said Patrick Gray to spend money on the said house and portion of land on the express understanding that he would be allowed to remain rent free on the said portion of land for the rest of his life. That so encouraged and on that understanding he spent money on the repair and renovation of the premises with the knowledge and consent of the said Patrick Gray. He has ever since been in undisturbed possession of the portion of land and the plaintiff purchased lot 903 with notice of the above. He counterclaims for a declaration that in 1968 he was given a licence coupled with an equity in that portion of lot 903 he now occupies and that he is entitled to remain in possession of it for the rest of his life.

The plaintiff replied that the sale on 30th October, 1980 overreached any equities subsisting on that date and further that the Plaintiff was a bona fide purchaser for value without notice of any right of the defendant in that portion of Lot 903.

The matter proceeded and was contested on the basis of the following main issues:- (1) Was there an arrangement which gave rise to an equity or equitable interest in the defendant? (2) If there was an equity, was the Plaintiff a bona fide purchaser for value without notice of the equity? (3) If there was an equity, was it overreached on 30th October, 1980? However, during addresses at the close of the evidence, it was pointed out that one question to be determined is whether Patrick Gray alleged to be the beneficial owner of the Lot 903 was in fact such. It was submitted for the defendant that this was not at issue during the trial. I, however, find that the matter is very such an issue. Apart from the fact that the Plaintiff in his reply joined issue with the defence and denied each and every allegation in the defendant's counterclaim, the question is germane to the issue whether there was an arrangement giving rise to an equity.

I proceed therefore to determine whether in 1968, Patrick Gray was the beneficial owner of Lot 903. According to evidence put before me, the lot was devised by Will by Margaret Louise Flowers upon trust for the use of Elisa Gray for her life and after her death upon trust for all her children then living as tenants-in-common. Eliza Gray died in 1929 leaving six children, Joseph Gray, John Gray, Thomas Gray, George Gray, Caroline Gray and Patrick Gray. By 1968 when the arrangement is alleged to have taken place, all except Patrick Gray had died. They were living at the time however and entitled to share in the lot by virtue of section 53 of the Administration of Estate Ordinance CAP. 196. Alvin Gray and Hildebrant Gray the widow and son of John Gray, Edith Gray and Althea Gray, widow and daughter of Thomas Gray.

This state of affairs came about in this way. According to the evidence before the Court, section 53 of the Administration of Estates Ordinance CAP 196 came into operation on the death of each child concerned. Joseph Gray died in 1933 leaving no wife nor issue, the remaining brothers and sister took his share in equal shares. John Gray died in 1936 leaving a widow and a son; His share was then enjoyed by them Alvira Gray and Hildebrant Gray along with the other 3 sons and daughter of Elisa Gray. Thomas Gray died in 1938 leaving a widow Edith Gray and a daughter Althea Gray. His share was then enjoyed by them along with Alvira Gray, Hildebrant Gray and the remaining 2 sons and daughter of Elisa Gray. George Gray died in 1941 leaving no widow nor issue. His share was enjoyed by Caroline Gray and Patrick Gray in equal shares. Caroline Gray died in 1961 leaving no spouse or issue. Her share then enjoyed by Patrick Gray. But of these five entitled to share in the land, only Patrick Gray lived on the land and was in possession. He could thus be said to be a trustee in possession, i.e. trustee for himself and the others entitled to a beneficial interest. He however clearly cannot be said to be the beneficial owner of the Lot 903 at the material time.

As trustee in possession of the lot, Patrick Gray had a duty not to act in any way inconsistent with the interests of the beneficiaries or put another way not to facilitate or encourage interests in the property hostile to that of the beneficiaries. He therefore was not a person who could validly induce another to expend money on the land under an expectation encouraged by him that the other will be able to remain on the land. He simply was not the owner of the land and had no authority to enter into the arrangement alleged. The defendant's defence and counterclaim must accordingly fail.

The decision at which I have arrived does not require a determination of the question whether there was in fact such an arrangement between Patrick Gray and the defendant as alleged. I however state my findings. The defendant said, "A year before be died, we had a long conversation. He said Man, you treat me better than my own. Don't worry about that house you have. This property belong to me and you can live in it until you dead. He did mention all his family turn him down in his old age. He told me to build a house and fix it up. At times windows were broken, door was broken. He told me to fix it up. I fixed up his house first. Put a verandah on it and before he died started building back mine, new door, new windows, new sides. Complete renovation. I gave it one coat of paint. Lumber very old. I also spent over $2,000 to put on a false cement front and a side walk with a business, a salon which I have been operating from 1973. I would say the renovations to the house came to about $5,000 at the most. After Mr. Gray died, I continued living on property and repair it. No one ever suggested to me I could not continue living there. When Mr. Gray told me this thing year before he died, I believed him. I made improvements after he told me this. I felt safe then." He said that he found out the property was being sold and when cross-examined about this he said "I did tell Plaintiff he was going to have a new neighbour and that the land was going to be sold. I did tell him if I had two more years I would have had 20 years. I was referring to fact that I lived on spot for 18 years. I did not tell plaintiff about Mr. Patrick Gray. When I received letter from Mr. Staine, I went to him the following day. I don't remember when I received that letter. I went to see Mr. Lindo and talked to him about it. It is true I wanted to lease the place. I asked Mr. Lindo about getting in touch with Mr. Habet about leasing the place." Finally in re-examination he stated, "I thought I own the land. Because he said fix up the house, don't worry and you can live there until you die."

I doubted that Mr. Patrick Gray gave the undertaking as alleged in view of the state of affairs of the estate as indicated above and I felt that the allegation required very cogent evidence to support it. If Mr. Gray had given the understanding as alleged, operating in the defendant's mind would be Mr. Gray's promise that he could live there for his life. Indeed the defendant said he thought he owned the land. But this did not appear to be operating in his mind when he learnt the land was sold. What operated was that he needed two more years to make twenty years on the land, that he couldn't remain on it and therefore he needed to get a lease of the spot from the plaintiff. This is not the behaviour expected of a person who has been given an undertaking and feels that he can remain on the land for the rest of his life. I did not find the evidence of the defendant sufficiently convincing to overcome the unlikelihood raised in my mind that the arrangement did not take place and I concluded that it did not take place.

In the result the defence and counterclaim having failed the plaintiff will have an order for possession of lot 903 from the defendant on or before the 31st December 1982; Plaintiff will also have judgment for mesne profits from 4th December, 1981 date of issue of the writ for possession, to be assessed by the Registrar. He is to have his costs.