Antigua Sugar Factory v Sutherland et Al

• Jurisdiction: Antigua and Barbuda
• Court: High Court (Antigua)
• Judge: Lewis, J.
• Judgment Date: 29 July 1966
• Neutral Citation: AG 1966 HC 2
• Docket Number: No. 82 of 1964
• Date: 29 July 1966

Circuit Court

Lewis, J.

No. 82 of 1964

Antigua Sugar Factory

and

Sutherland et al

Appearances:

C.O.R. Phillips for plaintiff

M. Butt, Q.C., and J.R. Henry for defendants

Contract - Subject matter — Uncertainty of subject matter — Whether the contract flowing from the plaintiff's exercise of his option was void for uncertainty.

Real property - Conveyancing — Option Clause — Whether conditions were fulfilled by the plaintiff for exercising the option under conveyance.

Facts: Evidence revealed that the deed of conveyance contained an option for the plaintiff to repurchase a piece of land.

Facts: Evidence revealed that the deed of conveyancing stipulated that anytime within 99 years after the conveyancing an option would be exercised.

Held: Though the area of land was not specifically identified, it was identified as running from the eastern boundary to the seashore and was required to be 40 feet wide and not less than 10 acres. As such the description of the land contained in the indenture and which was the subject of the contract flowing from the plaintiff's exercise of his option was not too indefinite to make it void. The objection by the defendant was over-ruled.

Held: Though the deed of conveyance did not specify any period of time within which notice may be given, it was valid, since the one condition laid down for fulfilment (that option could be exercised anytime within 99 years after the conveyancing) had been fulfilled. This aspect of the defendants' objection was overruled.

Lewis, J.

1 The plaintiff's claim against the defendants arises out of a deed of conveyance dated the 1st day of July, 1946, by which the plaintiff conveyed to the defendants an area of land known as Gambles upon certain terms and conditions stated therein. The conveyance was made subject to the reservation and condition that the plaintiff might repurchase an area for construction of a railway 40 ft. wide through, over, upon and across a portion of the said land from the eastern boundary to the sea and an additional area of not less than 10 acres at the seaside upon the terms stated in the conveyance.

2 By notices dated the 14th and 15th days of May 1964, the plaintiff notified each of the defendants of the plaintiff's intention to repurchase the areas according to the terms of the conveyance. The second defendant replied by a letter dated 19th May, denying the plaintiff's right to repurchase, but the first defendant “has neither replied nor taken any steps to honour the agreement”, (to use the language of the plaintiff company in paragraph 5 of its amended Statement of Claim).

3 The parties to the conveyance are also the parties to this action and the vendor of the lands is the plaintiff company which is in the conveyance referred to as “the Company”, which expression when the context so admits includes its successors and assigns. The first defendant is referred to in the conveyance as “the purchaser”, which expression when the context so admits includes her heirs, executors, administrators and assigns, and the second defendant, who is the son of the purchaser, is referred to as “the sub-purchaser”, which expression when the context so admits includes his heirs, executors, administrators and assigns.

4 The conveyance after reciting the title of the company to the land, which it conveyed, continues as follows:

5 “AND WHEREAS the company has agreed to sell, and the purchaser has agreed to purchase at the price of three hundred and fifty pounds (£350) subject to the reservation and condition that at any time during the period of ninety-nine (£99) years from the date of this conveyance the company its successors or assigns shall have the right to acquire from the purchaser her heirs, executors, administrators and assigns, an area for construction of a railway forty (£40) feet wide, through, over, upon and across any portion of the said lands from the eastern boundary to the sea, and an additional area of not less than ten acres at the seaside, at the price of ten pounds (£10) an acre: Now this indenture witnesseth that in pursuance of the said agreements, and in consideration of the sum of three hundred and fifty pounds (£ 350) paid by the purchaser to the company (the receipt of which is hereby acknowledged) And in consideration of the reservation by the company of the right to acquire from the purchaser or the person to whom the lands are conveyed, the heirs, executors, administrators, or assigns of either or both of them an area for constructing a railway forty feet wide through, over, upon or across any portion of the said lands from the eastern boundary to the sea, and an additional area at the seaside at not less than ten acres as required by the company at the price of ten pounds (£10) an acre the company at the direction of the purchaser subject to the agreed reservation and right of the company set forth above hereby grant and convey to the sub-purchaser, his heirs and assigns all that plantation or estate known as Gambles.

6 “…. And all that piece or parcel of land situate at Deep Bay…. And all fixtures, rights, easements … to the said lands and hereditaments appertaining … And all the right, interest, claim and demand of the company in to and upon same … To have and to hold unto and to the use of the sub-purchaser, his heirs and assigns in fee simple subject however to the reservation and right of the company as hereinbefore set forth”.

7 It was on the above-mentioned portions of the conveyance that Mr. Phillips relied in support of his case. In paragraph 4 of the amended statement of claim it is alleged that “the second defendant well knew prior to the said conveyance that the first defendant intended to covenant and did covenant and agree in the said conveyance with the plaintiff” in the terms of the covenants set out above which have been quoted from the said conveyance. It was further alleged in paragraph 6 of the statement of claim that “it was a term or condition of the said conveyance that the plaintiff shall have the right to select or determine the length and the specific locality of the forty feet wide area of land required for the railway and the extent, and locality of the area of land at the seaside”. It is alleged in paragraph 7 of the statement of claim that the defendants by their conduct are in breach of each of the terms and stipulations set out in the conveyance, and the plaintiff accordingly claims declarations that the company is entitled to have the areas of land before mentioned conveyed to the company, that the indenture dated 1st July 1946 created “a reservation or condition or option valid and binding on the defendants and each of them from the date thereof, that in respect of the said reservation or condition or option the plaintiff has the right to determine the specific locality of both areas of land and the quantum thereof. The plaintiff also claims specific performance of the contract, damages for breach thereof, and such further or other relief as the court might think fit.

8 Mr. Phillips in his address admitted that although the words “exception” and “reservation” are used in the indenture, the covenants therein did not create any exceptions and reservations in law. He submitted that what was in law granted to the plaintiff by the indenture was an option to re-purchase lands, and that the definitions of “exception” and “reservation” did not in any event fit the covenants on which the plaintiff was suing. He further stated that what the court was being asked to deal with was the grant of an option by the first defendant to the plaintiff whereby the plaintiff might re-purchase the land in question on the terms stated in the indenture. He further submitted that the position in then instant case was not one in which the option was contained in an agreement between landlord and tenant, and accordingly the option contained in this indenture was an option in gross. In support of his submission, Mr. Phillips referred to the remarks of Jenkins, L.J. in Griffith v. Pelton [1957] 3 All E.R. 75 at 83 as to the nature and effect of an option to purchase a land.

9 Mr. Phillips, having made it clear that he was conducting his case on the basis that the covenant amounted to an option to re-purchase, Mr. Butt conceded: -

• 1. That he could not attack the option on the ground that the description of the land is indefinite. He said he made this concession now that it had been made clear by the plaintiff's counsel that the covenant amounted to an option to re-purchase, and that that was the basis on which the plaintiff was conducting his case. Mr. Butt said, however, that he had had to plead as he did in paragraph 8 of his defence because the plaintiff had referred to the covenant as a “reservation and condition” in the indenture, and by virtue of those words he had intended to submit if the case were conducted on the basis that the covenant was a reservation or exception that it would have been void for uncertainty as the reservation and condition did not describe the land reserved with sufficient certainty.

• 2. That the covenant is in law an option and that being so it can give to the grantee of the option the right to choose the position and extent of the land. In the circumstances he said paragraph 8 of his defence no longer applied.

• 3. That as far as the first-named defendant was concerned, the plea in paragraph 6 of his defence that the option offends the rule against perpetuities was no longer being argued, as the plaintiff was clearly putting his case on the basis of a personal contract as between the plaintiff and Mrs. Sutherland.

• 4. That as regards the second defendant, he took a benefit under the deed of conveyance and he was therefore bound by it on the principle laid down in May v. Belleville [1905] 2 Ch. 605.

10 In the light of this last submission, I am of the opinion that the plea in paragraph 4 of the...