Wendy Susan Wilkinson and Others v Allan McIntosh Mackie

• Jurisdiction: Bermuda
• Judgment Date: 21 July 1989
• Date: 21 July 1989
• Docket Number: Civil Jurisdiction 1987 No. 300
• Court: Supreme Court (Bermuda)

In the Supreme Court of Bermuda

Wade, J.

Civil Jurisdiction 1987 No. 300

Wendy Susan Wilkinson

Dianna Helen Outerbridge

Heather Marianne Brewer

Plaintiffs

and

Allan McIntosh Mackie

Defendant

Appleby, Spurling & Kempe for the Plaintiffs

Mello and Jones for the Defendant

JUDGMENT

Wade, J., Acting

The Plaintiffs in this action seek a declaration that they, the Plaintiffs, are the owners in fee simple as tenants-in-common in equal shares of a parcel of land 100 feet by 40 feet on the southern side of the Defendant's property in Fairylands, Pembroke, more particularly delineated on the plan attached to the Statement of Claim. They further seek an injunction restraining the Defendant by himself, his servants or agents, from parking vehicles or otherwise trespassing on the property and damages for trespassing and their costs.

The case for the Plaintiffs is that they are the beneficiaries under the will of their late grandfather, Edward Campbell Wilkinson, who died in December, 1970. Although he had no deeds to the property, they say he had a good possessory title to the “Lilliput” property, situate in Fairylands, Pembroke, which he devised to them. The property in dispute is part of the “Lilliput” property. The Plaintiffs say the Defendant rented the property from their late grandfather and a relationship of landlord and tenant existed between them.

The Defendant, Allan McIntosh Mackie, denies this allegation and counters by saying since in or about 1950 he and his wife agreed to purchase the property in dispute from the Plaintiffs' predecessor in title, the late Edgar Campbell Wilkinson, for a purchase price of £500 which was paid to him. Edgar Campbell Wilkinson promised that he would have the land conveyed into the names of the Defendant and his wife. However, this conveyance was never executed. The Defendant says that since his purchase of the property in 1950, he has continually occupied the property as his own, without hindrance or interference from Edgar Campbell Wilkinson, his heirs or assigns, beneficiaries or trustees. With this in mind, the Defendant contends that he has obtained a good title by adverse possession.

Therefore, the Defendant counterclaims for a declaration that his title and rights to possession of the area in dispute is better than that of the Plaintiffs, an injunction restraining the Plaintiffs from trespassing, costs and further or other relief.

In order to seek the relief being sought, the Plaintiffs must prove that they or their predecessor in title, namely Edgar Campbell Wilkinson, own the land which is the subject matter of the dispute. If this question is answered in the affirmative, then the next question follows, have the Plaintiffs or their predecessor in title been dispossessed of the strip of land by the Defendant.

Wendy Susan Wilkinson, the first named Plaintiff, told the Court that on the 17th April, 1986, the property was conveyed to her and her cousins, Diana Outerbridge and Heather Brewer, the second and third named Plaintiffs, respectively. She told the Court that in 1984, two years before the conveyance was executed, she first became personally aware that there was a claim by the Defendant. I should say at the outset that it was completely improper for the Plaintiffs to execute the conveyance whilst the claim adverse to their title was still pending.

The second witness for the Plaintiffs is Mrs. Turner, who initially read from her Affidavit sworn on the 27th July, 1984. She testified that from 1961 to 1970 she was the secretary of the late Egdar Campbell Wilkinson. She confirmed her knowledge of the property in dispute, which she said she always understood and believed to be the property of Edgar Campbell Wilkinson for many years previous to his death in 1970. She said she knows he had uninterrupted possession of the disputed land because she collected the rents for the property for the duration of Mr. Wilkinson's absence which was usually twice annually. According to Mrs. Turner, Mr. Mackie came to the office occasionally to pay his rent which would be 2 or 3 months in arrears.

She would be required to write up the receipts which she entered in her receipt book. Approximately three months after Mr. Wilkinson died, Mrs. Turner handed over the receipt book to Mr. King at the Bank of N.T. Butterfield, who are the Trustees for the Wilkinson's estate. She has not seen the receipt book since handing them over to the Bank.

Mrs. Turner further states that the Defendant paid rent prior to her employment in 1961. Although she is not aware of how long he paid rent prior to that date. She stated that the Defendant was in arrears of rent at the time of Mr. Wilkinson's death.

The witness went on to say that Edgar Campbell Wilkinson had a lot of property which he inherited, he had shares in many local companies, and he had a liquor store at the foot of the hill.

In cross-examination, Mrs. Turner told the Court that prior to the affidavit being sent to her for signing in 1984, she received a letter asking her what she remembered about the property. She could not recall if the letter indicated why the information was being sought. She said that prior to receiving the correspondence in 1984, since Mr. Edgar Campbell Wilkinson death in 1970, she was not requested to apply her mind to this matter. Nevertheless, she knew Mr. Mackie was paying rent for the land in dispute because Mr. Wilkinson told her that this was the only piece of land he was renting.

She reiterated that she had seen Mr. Mackie pay rent to Mr. Wilkinson for the land about 6 times during the period of her employment. She is unable to say when Mr. Mackie last paid rent. However, she said that two months prior to Mr. Wilkinson's death he sent a letter to Mr. Mackie requesting payment of the arrears. This letter, she says, is in the file which the Bank took over from her.

She recollected that between 1961 to 1971, she went to this part of Fairylands approximately three or four times. She said she had no personal knowledge that Mr. Mackie built a stable on the land, nor that he kept numerous cars there, nor did she know that he had built a tank.

Mrs. Turner's recollection left much to be desired when she was questioned about dealings with the other properties. She was able to recall virtually nothing about the other properties or their occupants. She...