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June 19, 1961
HIGH COURT
CORAM
By an agreement reached between the plaintiffs and the defendants, confirmed by letter of offer by the plaintiffs dated the 11th February, 1960, and accepted by the defendants by letter dated the 15th February, 1960, the plaintiffs agreed to sell and the defendants agreed to buy the property the subject-matter of this suit. The material paragraph in the defendants’ letter of acceptance is as follows:
“For the sake of order we hereby confirm that we have agreed to pay you the sum of £G27,750 for the freehold property on completion of transfer of title by the agreed solicitors.”
The defendants now refuse to complete the said agreement on the grounds that the plaintiffs’ root of title, namely, conveyances dated the 26th February, 1943, the 31st March, 1944, and the 31st March, 1944 conveyed only a life interest in the hereditaments and premises, the subject-matter of the sale, and therefore the plaintiffs as purchaser from the grantees under the deeds, are incapable of granting the freehold title which they have contracted to convey.
The contention of the defendants that the documents in question conveyed only a life interest is based upon the fact that the words “and their heirs” are not used in the said deeds in describing the purchasers.
It was submitted on behalf of the defendants that at common law a freehold estate can only be created in a conveyance inter vivos by a phrase which includes the word “heirs”, and that where that word is omitted only a life estate could pass. Therefore, it was submitted, the omission from those documents, after the word “purchasers” of the phrase which expression shall include his heirs executors, administrators and assigns where the context so admits made the estate conveyed a life interest, and not a freehold estate. Counsel referred to Megarry on Real Property, (1947 ed.) p. 33 where the learned author said:
“The rule at common law was that a freehold estate of inheritance could be created in conveyance inter vivos only by a phrase which included the word heirs. A life estate could be created without using this word, but a fee simple or fee tail could not. It is important to note that no other word would do: ‘relatives’ ‘issue’ ‘descendants’ ‘assigns’ ‘for ever’ ‘in fee simple’ ‘in tail’ and so on were all ineffective. Heirs was the sacred word of limitation and had a magic which no other word possessed”.
Counsel next referred the court to Stroud’s Judicial Dictionary, (3rd. ed.) Vol. 2, pp. 1295-1301 where the wor
AI Generated Summary
The dispute arose from a 1960 agreement for the defendants to purchase, for £G27,750, a freehold property in Accra from the plaintiffs, evidenced by offer and acceptance letters and to be completed by agreed solicitors. The defendants refused to complete, arguing the plaintiffs’ root of title conveyed only a life interest because the word 'heirs' did not appear in the 1943–1944 conveyances. OLLENNU J held that Ghana’s land law is governed by customary law under the Courts Act 1960, not English feudal concepts, and that 'heirs' has no meaningful role in Ghanaian succession. The conveyances used 'successors and assigns' and referred to fee simple, which in Ghana signifies an inheritable estate of indefinite duration. Finding the plaintiffs’ title to be freehold, the court ordered specific performance and entered judgment for the plaintiffs.