Oatham v Dickens & Gibbons and Oatham

• Jurisdiction: Bermuda
• Judgment Date: 11 October 1977
• Date: 11 October 1977
• Docket Number: Civil Jurisdiction 1974 No 246
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 1974 No 246

Between:

Mona Jean Oatham

Plaintiff

and

Charles Arthur Phillip Dickens

and

Leon Gordon Gibbons (Carrying on business as Dickens & Gibbons)

1st Defendants

and

Thomas Oatham

2nd Defendant

The following cases were referred to in the judgment:

Cates and Panchaud v Dill [1956] Bda LR 1

Lord Abergavenny's Case 77 ER 373

Hills v Webber 17 TLR 513

Glasspoole v YoungENR 109 ER 259

Summary judgment — Judgment debt — Property subject to mortgage — Equity of redemption — Joint tenants

JUDGMENT of Summerfield CJ

1. The Plaintiff was married to the 2^nd Defendant on the 4^th May 1957 and the marriage is still subsisting. On the 8^th March 1970 the Plaintiff and the 2^nd Defendant purchased by deed of conveyance a parcel of land in Jennings Land, Smith's Parish, with a house erected thereon known as “Raintree” to which this matter relates. The deed is expressed to appoint Raintree to the use of the 2^nd Defendant and the Plaintiff their heirs and assigns for ever. It is common ground that they held the fee simple as joint tenants. Raintree was conveyed to the British American Insurance Company Limited (which is not a party to this cause) by the Plaintiff and the 2^nd Defendant by an indenture of mortgage dated the 1^st November 1974 subject to the right of the Plaintiff and 2^nd Defendant to redeem that property in the manner expressed therein. Raintree was the joint matrimonial home until the 12^th October 1974 when the parties separated, the 2^nd Defendant leaving the matrimonial home on that date. They have not lived together since – at Raintree or elsewhere. The Plaintiff continued to reside in Raintree and still does. The 2^nd Defendant pays the outgoings, including the payments on the mortgage.

2. The 1^st Defendants obtained a judgment of the Supreme Court against the 2^nd Defendant on the 7^th February 1975 in the sum of $2,659.57 and interest thereon at 5% per annum from that date. The judgment was obtained in default of defence. The judgment sum of $2,659.57 was the balance due by the 2^nd Defendant to the 1^st Defendants in respect of general repairs done to Raintreee, including work on the kitchen and steps from the patio. The 2^nd Defendant had ordered the work to be done while he and the Plaintiff were living together at Raintree. The work was done with the approval and knowledge of the Plaintiff. Nevertheless it was work done to the order of the 2^nd Defendant.

3. On the 19^th February 1975 the 1^st Defendants obtained a writ of execution against the 2^nd Defendant in the amount of the judgment debt aforesaid. The writ of execution was in the general composite form in use and commands a levy of $2,659.57 and interest on that amount at 5% per annum from the date of judgment from the goods chattels lands and tenements of the 2^nd Defendant. On the 4^th February 1976 the 1^st Defendants, being execution creditors of the 2^nd Defendant, cause the offices of the Provost Marshal General to seize Raintree under the authority of the writ of execution.

4. In passing it may be said that the 2^nd Defendant holds a senior position under the Government of these Islands and there should have been no difficulty in obtaining a garnishee order against his salary in order to satisfy the judgment debt. As it was this remedy by way of writ of execution was sought.

5. On the 19^th February 1976 the Plaintiff laid claim to Raintree, which had been seized in execution by the Provost Marshal General, pursuant to Order 57, rule 16 of the Rules of the Supreme Court. On the 26^th February 1976 the Provost Marshal General commenced interpleader proceedings pursuant to Order 57, rule 17, which resulted in the order for these proceedings on the 1^st April 1976 claiming inter alia:

• i. A declaration “Raintree” is not property subject to or liable to seizure, or any other execution proceedings pursuant to the Writ of Execution.

• ii. A declaration that the seizure of “Raintree” is invalid and consequently null and void.

• iii. Alternatively a permanent injunction to restrain the 1^st Defendants from selling or instructing their agents or employees to sell “Raintree” pursuant to the Writ of Execution.

• iv. Alternatively an Order of the Supreme Court to amend the aforesaid Writ of Execution to except “Raintree” from the goods, chattels, lands and tenemants of the said Thomas Blackman Eugene Oatham as stated therein.

• v. Alternatively a Stay of Execution wheresoever it may relate to “Raintree”.

6. At the hearing the 2^nd Defendant did not appear and was not represented. Only the Plaintiff gave evidence.

7. It is contended on behalf of the Plaintiff that the seizure of, or a sale or, the interests of the Plaintiff in Raintree without her consent are not such acts as are authorized by the writ of execution, insofar as it is real property that formerly was owned by the Plaintiff and the 2^nd Defendant in fee simple as joint tenants, and insofar as the Plaintiff and the 2^nd Defendant are not at present the legal owners of the property, but have only a beneficial interest in the property in the nature of an equity of redemption.

8. Alternatively it is claimed that the sale of Raintree is inequitable and should be restrained by this Court by reason of the circumstances recited above and those further matters recited below.

9. Raintree was purchased in 1970 for the sum of $72,000, more than 27 times the amount of the judgment obtained by the 1^st Defendants against the 2^nd Defendant.

10. The Plaintiff is unable to meet the judgment debt personally.

11. At the hearing evidence was led about the Plaintiff's impoverished state and the general hardship to her if this land is sold pursuant to the writ of execution as requested. However I am of the opinion that that does not affect the principles involved.

12. It is well established that a judgment of this court constitutes a lien on the judgment debtor's land –Cates and Panchaud v Dill [unreported, Civil Jurisdiction 1954 No 107].

13. Section 1 of the Real Estate Assets Act 1787 provides:

‘1 The houses, lands and other hereditaments, and real estate situated or being within these Islands belonging to any person indebted, shall be liable to and chargeable with all just debts, duties and demands of what nature or kind soever owing by any such person to Her Majesty, or any of her subjects; and shall and may be assets for the satisfaction thereof in like manner as real estates are by the law of England liable to the satisfaction of debts due by bond or other speciality; and shall be subject to the like remedies, proceedings and process, in any court in these Islands, for seizing, extending, selling or disposing of any such houses, lands and other hereditaments and real estate, towards the satisfaction of such debts, duties and demands, and in like manner as personal estates in these Islands are seized, extended, sol or disposed of, for the satisfaction of debts.’

14. In the case of Cates and Panchaud the learned Assistant Justice held that that provision, together with an earlier provision in a United Kingdom Act of 1732 which he held applied to Bermuda, altered the English law applicable to Bermuda before that date in several respects, namely:

‘Firstly they provided that the ...