Cutler v Hodge

• Jurisdiction: Anguilla
• Judge: Joseph, J.
• Judgment Date: 07 June 1985
• Neutral Citation: AI 1985 HC 3
• Docket Number: Civil Suit no. 6 of 1983
• Date: 07 June 1985
• Court: High Court (Saint Christopher, Nevis And Anguilla)

High Court

Joseph, J.

Civil Suit no. 6 of 1983

Cutler

and

Hodge

Real property - Ownership

Facts:

The plaintiff sought a declaration that Architects Design Group Ltd. was owner in possession of the property in dispute, damages for trespass, and injunction to restrain the defendants from entering upon the premises. The defendant sought a declaration that he and his wife were in possession of the property. The court granted the declaration and injunction sought by the plaintiff.

Held:

The plaintiff owned the defendant the sum of US$90,000 on the purchase price of the building. Order made that the sum of US$90,000 be paid into court and payments made as the Court directed.

FINDING

1 The plaintiff's claim is for –

• (1) Declaration that Architects Design Group (Anguilla) Limited (hereafter referred to as the Company) of the Valley, Anguilla is the owner in possession of all that property situate at George Hill, Anguilla, which is registered in the Land Registry of Anguilla in South Central Section, Block 38612 B Parcel 52 (hereafter referred to as the property).

• (2) A Declaration that the defendant is not entitled to enter upon the plaintiff's property described or to cause others to enter upon the said property.

• (3) Damages for the wrongful entry upon the plaintiff's premises by the defendant, his servants or agents and for wrongfully expelling the plaintiff from the premises and removing the equipment and belongings of the plaintiff thereby causing damage to the equipment and belongings of the plaintiff on the 24th and 25th days of January, 1983.

• (4) An injunction to restrain the defendant by himself, his servants or agents from entering upon or remaining upon the plaintiff's land.

• (5) Damages, Costs, further or other relief.

2 The defendant denies that –

• (1) The plaintiff is owner in possession of the property.

• (2) he made wrongful entry on the property: expelled the plaintiff or removed and caused damage to the plaintiff's equipment.

3 The defendant seeks a declaration that he and his wife Laura Hodge are in possession of the property. He prays the Court for further and other relief as may be just.

4 David Brazier, Director of the company purchased the property from the defendant, and at the time of the purchase the defendant led Mr. Brazier to believe that the property was free from all incumbrances. The negotiated price was US$140,000.00. The company paid the defendant US$10,000.00 and a receipt the text of which follows was signed:–

“Received of Architect Design Group Anguilla Limited the sum of US$10,000 being a deposit and first instalment on a purchase price of US$140,000 for South Central Section Block 38612 B Parcel 52 sold on the following conditions:

• 1.

  • (a) US$10,000 paid on 29th October 1981

  • (b) US$10,000 paid on 1st December 1981

  • (c) US$15,000 paid on 1st March 1982 and thereafter every three months until the total purchase price of US$140,000 is paid.

• 2. I.D. Mitchell, Solicitor to hold pre-signed transfer documents in escrow and to register them with the Anguilla Land Registry when all the purchase price is paid to the sellers on their instructions.

• 3. The purchaser to be Architects Design Group (Anguilla Ltd. its nominees, successors or assigns.

• 4. The sellers consent to a caution being immediately registered to protect the purchaser's interest.

Dated 20th October 1981

Witness I.D. Mitchell (Sgd.) Laura Hodge, James Hodge.”

5 The company paid a further US$40,000 on account of the agreed purchase price to the defendant leaving a balance of $90,000.00.

6 On 11th November, the company went into voluntary liquidation and Roy Cutler was appointed liquidator. It seems that the defendant was not told that Roy Cutler was so appointed.

7 During the month of August 1982, David Brazier discovered that the defendant and his wife Laura Hodge had mortgaged the property to the Caribbean Commercial Bank Ltd. of Anguilla and that as at 29th October 1981, US$24,000 was owed by the defendant and his wife.

8 I pause here to observe that the mortgage was registered in the Land Registry and the responsibility for ascertaining that the land was free from incumbrances was the purchacer's. Section 30 of the Registered Land Ordinance 1974 (No. 4 of 1974) provides that every proprietor acquiring land shall be deemed to have notice of every entry in the registration to the land lease or charge.

9 The defendant left Anguilla, leaving the key with Mr. Brazier. His explanation was that the arrangement was that Mr. Brazier was to hand the key to the Solicitor I.D. Mitchell, yet he made no enquiry during the subsequent months for the key. A look at the receipt indicates that the action outstanding on the receipt was that on payment of the purchase price, the plaintiff could receive the transfer documents held in escrow by the Solicitor. It would have been very easy to provide for the handing over of the key and the transfer documents at the same time, if that had been the intention of the parties. I find that the defendant let the company into possession by giving David Brazier a key to the building.

10 By letter of 26th August 1982, Solicitor I.D. Mitchell *TEXT MISSING* David Brazier informing him that the defendant had *TEXT MISSING* requesting that payment due on 1st September be paid on time, and asking him for funds to be forwarded to the defendant. There was no reply to this letter. David Brazier failed to meet the instalment payments due June 1982. The defendant was therefore unable to meet the mortgage payments for his apartment building in Miami. There were foreclosure proceedings in respect of the apartment building: the defendant collapsed from anxiety and spent a week in the intensive care unit at Jackson Memorial Hospital. Consequent on foreclosure proceedings, he lost the apartment building. He contacted Solicitors E. Hewlett in Tortola, Solicitor Mitchell in Anguilla and a friend Hubert Hughes to obtain assistance in obtaining payments from David Brazier. Mr. Hewlett gave him a letter dated 25th October 1982, which he (defendant) delivered personally to David Brazier. The letter contained a demand for payments of $15,000.00 due after 1st June 1982, and stated that failure to make immediate payment would result in legal action.

11 One would have expected David Brazier to reply to this letter advising that he had discovered the existence of a mortgage. He did not. I conclude that the real reason for failure to pay the instalment, was that the company at the...