Elwin v Lestrade
| Jurisdiction | Dominica |
| Judge | Bruno, J. |
| Judgment Date | 20 March 1976 |
| Neutral Citation | DM 1976 HC 1 |
| Docket Number | No.150 of 1976 |
| Court | High Court (Dominica) |
| Date | 20 March 1976 |
High Court of Justice
Bruno J.
No.150 of 1976
H. Dyer and Mrs. Z. Moore Dyer for plaintiff
J. Armour and G. Harris for defendant
Contract - Sale of land — Undue influence — Whether defendant exercised undue influence to obtain Memorandum of Sale — Plaintiff (85 years old) was the defendant's (50 years old) aunt — Finding by court that a fiduciary relationship existed between both parties — Law presumes there is undue influence and onus is on the defendant to show that transfer was the spontaneous act of the plaintiff — Defendant failed to discharge that responsibility — Certificate of Title in favour of the defendant cancelled and the original title in favour of the plaintiff reinstated.
Real Property - Title — Memorandum of Sale — Whether Memorandum of Sale obtained by fraudulent representation.
Facts: The plaintiff, an 85 year old woman signed memorandum which was incorrectly read to her. Further evidence indicates that the plaintiff never authorised the defendant (her niece) to consult a lawyer to arrange for the transfer of land.
Facts: The plaintiff, an 85 year old woman signed memorandum which was incorrectly read to her. Further evidence indicates that the plaintiff never authorised the defendant (her niece) to consult a lawyer to arrange for the transfer of land.
Held: The defendant was guilty of a fraudulent act. Certificate of Title in favor of the defendants cancelled and original title in favour of the plaintiff reinstated.
Held: The defendant was guilty of a fraudulent act. Certificate of Title in favor of the defendants cancelled and original title in favour of the plaintiff reinstated.
The plaintiff in this action is an elderly woman. She is now 85 years of age. The defendant, her niece, is a comparatively young woman. She is now 50 years old. One year after her marriage in 1948, her husband left these shores for the United States. He has never since returned.
In 1964 the plaintiff owned two properties, one known and assessed as No. 47, Great George Street, Roseau; and the other comprising 1824 square feet known as Lot S 584, Pottersville and also described as No. 33, Church Lane, Goodwill.
In the year 1964 the plaintiff conveyed her said property in Roseau (47 Great George Street) to the defendant. And on the 6th day of June, 1974, she (the plaintiff) signed a memorandum of transfer of sale in respect of No. 33, Church Lane, Goodwill, in favour of the defendant.
Save for failure of the defendant to have paid her the $300 the consideration mentioned in the Deed of Conveyance with respect to 47, Great George Street, the plaintiff makes no complaint regarding that transaction, And she claims payment by the defendant of the said sum of $300 together with interest from the 13th day of January, 1973, to the date of payment.
As regards No. 33, Church Lane, Goodwill, the plaintiff claims as follows:
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(1) An order that the Memorandum of Transfer dated 6th June, 1974, from Pauline Elwin to Angela Lestrade in respect of the said portion of land be set aside with all consequential directions.
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(2) An order that the Certificate of Title in favour of Angela Lestrade registered in the Book of Titles of the Associated State of Dominica in Volume K. Folio 73 be cancelled.
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(3) A declaration that the defendant holds the property mentioned above and all profits and benefits derived there from as Trustee for the plaintiff.
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(4) An order that Certificate of Title registered in Book of Titles B.L. folio 40 in favour of the plaintiff be reinstated.
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(5) A declaration against the defendant for fraud.
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(6) An order for mesne profits against the defendant from the 13th day of January, 1973.
I deal now with the evidence of the plaintiff and her lone witness. Now feeble and manifestly in dire need of care, the plaintiff resides at the home of the witness Mrs. Mary Deschamps in Field Lane, Roseau, That care is provided by Mrs. Deschamps,
The plaintiff's evidence is to the effect that she owned the two properties -- No. 47, Great George Street and No. 33, Church Lane, Goodwill. Up to 1964 she lived at 47 Great George Street. At that time the defendant resided with her. In that said year fire destroyed her Roseau property. All her belongings in the house were consumed in the flames.
She moved to her Goodwill property. The defendant and her two sons accompanied her and there they too took up residence.
Some tame later the plaintiff agreed to sell the lot at 47, Great George Street to the defendant for the sum of $300. It comprised only 550 square feet. And the plaintiff said she agreed to that figure because of the relationship that existed between them.
I pause to observe that the Deed of Conveyance dated 13th January, 1973, supports her evidence of the sale. That deed was in support of an application by the Defendant for a First Certificate of Title in respect of the said lot. The vendor mentioned in the Deed is the plaintiff while the defendant is the purchaser,
I quote the relevant part of the said deed:
“Whereas the vendor sold a portion of land to the purchaser containing 550 square feet and bounded as follows: — North-west: By land of Beatrice Guye; North-east: By Great George Street; South-west: By land of Beatrice Guye; South-east: By land of B.G. Tavernier, that is to say all as the same is bounded and described below for the sum of $300.00 Three hundred dollars.
And whereas the Purchaser is desirous of having a formal transfer of the said land executed.
Now therefore this Deed Witnesseth: That in consideration of the sum of $300 paid to the Party of the One Part by the Purchaser (the receipt of which the Party of the One part, hereby acknowledges) the Party of the One Part hereby conveys grants and delivers unto and to the use of the Purchaser and her heirs in fee simple, all that portion of land bounded on the North-west by land of Beatrice Guye, North-east: By Great George Street, South-west: By land of Beatrice Guye; South-east: By land of E>G> Tavernier, or howsoever otherwise the same may be butted or bounded known distinguished or described to have and to hold unto and to the use of the purchaser and his heirs for ever in fee simple”
That deed was prepared by a firm of solicitors of which Counsel for the defendant is a member. Indeed the signature of Counsel acting as solicitor appears on the document.
This sale has been denied by the defendant. I shall deal with her denial later in my judgment.
I return to the evidence of the plaintiff. She denied ever agreeing to sell her Church Lane property to the defendant. She denied too ever having been taken by the defendant and a man named Blaize in a car outside the Chambers of Counsel for the defendant. There was equally stout denial of her having signed any document in the car in the presence of the defendant Blaize and one of Mr, Armour's clerks.
She said too that she was always aware that the Certificate of Title for her Church Lane property was in the possession of Mrs. Mary Deschamps to whom she had herself entrusted it. She said she never told the defendant that the document had been destroyed in the fire at Great George Street.
It is a fact that the document was not devoured in the flames for Mrs. Deschamps produced it. It is an exhibit in the case.
The plaintiff insisted that with respect to every paper she signed at the request of the defendant she was told that it was in connection with the Great George Street transaction.
Under cross-examination she swore that she had not yet received the $300 for the Great George Street property. That is admitted by the defendant. But she denied any agreement for payment. This must have been somewhat embarrassing to defence counsel who apparently himself prepared the deed of conveyance in respect of the lot.
The witness was cross-examined at some length regarding wills she made. In my view they shed, little, if any, light on the real issues in this case.
Following questions about the wills defence counsel put this question to the plaintiff: “Is it not true that it was always your intention over a long period to give both you Great George Street property and the Pottersville property to the defendant?” A sharp “No” was the reply.
In yet another answer to defence counsel, the witness denied that she had ever requested the defendant to see a lawyer on her behalf.
Having regard to the fact that the deed of conveyance in respect of the Great George Street property was prepared by defence counsel, it seemed to me odd that he should have asked the following question of the plaintiff: “Is it not true to say that it was never your intention to collect money from the defendant for the Roseau property”
I have already adverted to the relevant recitals in that instrument.
And the plaintiff repeated the agreement by the defendant to pay her $300 for the lot, and added that she told the defendant when she paid her the $300 she (the plaintiff) would take it to Mrs. Deschamps, who had loaned her the money to buy the property.
It was suggested to the plaintiff by Mr. Armour that a Mr. Patrickson Blaize went into his office obtained the memorandum of transfer and took it to her (the plaintiff) in a car in which she was outside his (Mr. Armour's) office for her to sign and that the document was read to her by a lady clerk from his (Mr. Armour's) office. The witness firmly denied the suggestion.
It will be necessary for me to refer even briefly to the relationship between the man Patrickson Blaize and the defendant.
Suffice it to say that the evidence of the defendant herself was that he was a boarder-lodger at 33 Church Lane, Goodwill and that he paid her varying amounts monthly for the services he received. I would only observe that he appears to have been present in respect...
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