Sale of land — Proof of title — Nature of title contracted for — Whether sufficient to prove possessory title — Appeal dismissed
The appellant and the respondents compromised court proceedings over the ownership of land by way of an agreement under which each undertook to transfer certain parcels to the other. The land to be transferred by the respondents included a parcel in respect of which they claimed a possessory title only. For the purposes of the contract, they relied upon a statutory declaration to prove title.
The appellant later claimed that he was already the owner of that parcel, on the basis that his predecessor in title had acquired it by adverse possession. He proceeded to procure a conveyance from his predecessor to himself. He then purported to rescind the agreement with the respondents, contending that they had failed to discharge their implied obligation to prove their title. The respondents sought specific performance of the agreement, and were awarded summary judgment on the basis that the appellant had no real prospect of success at trial.
The appellant appealed. He contended that a title resting solely upon the vendor’s possession for 12 or more years, albeit supported by statutory declarations, did not suffice to establish good title. He maintained that it was necessary to show that the interests of all claimants to the original title had been extinguished, by tracing the title from a good root to the point at which the then legal owner was dispossessed. Rejecting that contention and dismissing the appeal, the judge held that the vendor’s implied obligation to show good title had to be modified in the light of the purchaser’s knowledge of the vendor’s title at the date of the contract. He held that the appellant had contracted for no more than a possessory title, which was good as between the appellant and the respondents since the only person who had the potential to upset it was the appellant himself. He also took the view that, in any event, the respondents’ title had not been displaced by adverse possession.
On a further appeal, the appellant argued that the judge below had, inter alia, erred in finding on the evidence before him that the appellant had failed to show 12 years’ adverse possession by his predecessors in failing to take account of evidence that could reasonably be expected to be available at trial.
Held: The appeal was dismissed.
Although the judge should have addressed the matter before him on the basis that it was at least possible that the appellant would be able to establish adverse possession on the evidence available at trial, that did not assist the appellant. The respondents’ claim to specific performance arose out of a compromise agreement that had been reached on the basis that the appellant admitted the respondents’ ownership of the parcel of land in question. He had set up no adverse title to that land at the time of the agreement, even though the facts that he now relied upon to assert an adverse title had been known to him then. He had chosen not to raise those facts at that time, and it was not open to him to raise them now to assert that he would not get what he had bargained for under the compromise agreement by arguing that, on a true understanding of the position at the time of that compromise, he already had title by adverse possession.
The obligation assumed by the respondents under the compromise agreement had been to convey such title as they had to the land that they claimed to own. So far as that land was registered, the respondents were able satisfy that obligation by a transfer of land out of the registered title. So far as it was not registered, it would suffice to produce a conveyance accompanied by a statutory declaration of long possession, sufficient to enable the appellant to obtain registration. Accordingly, the respondents had done all that was necessary. Consequently, when analysed on the basis of the unchallenged documentary evidence, and after making all the proper assumptions in favour of the appellant on matters that were in dispute, there was no real prospect of a successful defence to the respondents’ claim for specific performance of the compromise agreement.
Jason Silverman, of Rokeby Johnson Baars LLP, appeared for the appellant; Wayne Clark (instructed by Wedlake Bell) appeared for the respondents.
Sally Dobson, barrister
