Shields v. The London and Western Trusts Co.

The learned trial judge held that Morris Katzman had authorized his wife, Becky Katzman, to sign the document which I have quoted, that she did in fact sign it and that her doing so was subsequently ratified by her husband. Subject to a question of law as to the possibility of ratification by an undisclosed principal of an act which his agent has purported to do not as agent but as principal, these findings of fact appear to be suffi6iently supported by evidence; but in any event, in the view I take of the appeal, they need not be questioned.

It will be noted that in the contract produced and sued upon Mrs. Becky Katzman describes herself as the owner of the property-" Owner's name, Mrs. Becky Katzman." In addition to signing the document in her own name without any indication that in doing so she was acting as agent for her husband, she expressly purported to contract for payment of the commission as owner of the property to be sold, thus distinctly negativing such agency. Under these circumstances I am of the opinion that parol evidence was not admissible to shew that she was in fact contracting as agent for her husband; Humble v. Hunter (1); Formby Bros. v. Formby (2). Such evidence would necessarily tend to contradict a material statement in the writing in which the contract is embodied and upon which the plaintiff must rely to satisfy the statute. I am therefore of the opinion S.C.R.

that the contract produced does not satisfy the requirements of the statute so as to enable the plaintiff to maintain this action as against the present appellant, Morris Katzman.

The action was originally brought against Morris Katzman, Jake Orechkin and Mrs. Morris Katzman.

It was properly dismissed at the trial as against Orechkin, no attempt having been made to shew agency for him on the part of Mrs. Katzman. Judgment was given against the two Katzmans. In the Divisional Court the plaintiff was put to its election whether it would treat Mrs. Katzman as a principal or as an agent for her husband in making the contract for commission.

J.-The respondent could not bring its action against the appellant claiming a commission for the sale of real property, unless there was an agreement in writing to pay it, separate from the sale agreement, and signed by the party to be charged therewith or some person thereunto by him lawfully authorized. 6 Geo. V (Ont.) c. 24, sec. 19, as amended by 8 Geo. V, c. 20, sec. 58.

The agreement on which the respondent's right to bring this action is based is however signed not by the appellant but by the latter's wife who describes herself and signs as owner of the property to be sold.

The appellant, for the first time, raised the objection in this court that the respondent cannot by parol evidence contradict the agreement in writing produced by it in support of its action and shew that the appellant's wife made this contract on the appellant's behalf.

To my regret, because this objection should have been made earlier, I find myself constrained to hold that it is well taken. In other words, where a plaintiff produces and relies upon an agreement which was entered into by a third person as principal, parol evidence is not admissible to shew that such person contracted merely as the defendant's IDINGTON J.-The appellant raises very many points relative to the correct practice and procedure to be taken in Ontario courts by those seeking partition of real estate held by tenants in common as respondent does herein as administrator of the estate of one William B. Shields, deceased, and one of five who had been duly declared owners of the equity of redemption in certain lands.

Indeed on a motion of the four surviving owners, including the appellant, and respondent as representative of said deceased, the said equity of redemption had been declared to be vested in the appellant and his said coowners.

The uniform jurisprudence of this court has been to refuse to exercise its jurisdiction in such matters unless some grave violation of natural justice has been involved in the departure from the correct practice or procedure.

Therefore the appellant has no grounds of complaint herein, in his vain attempt to get a very serious injustice done to the respondent, one of his co-tenants.

His attempt to set up the Statutes of Limitations is rather absurd as well as unjust in face of the past history of the property in question and the litigation it has gone through.

And in face of his repudiation of any claim thereunder for himself in his answer by affidavit to the originating motion below, it seems rather absurd.

I think the judgment of Mr. Justice Middleton speaking for the majority of the court below is right.

This appeal should be dismissed with costs.

S.C.R.

J.-The appellant has failed to advance adequate reasons for interfering with the decision of the Appellate Division on the ground principally relied upon in support the appeal, namely, that the procedure followed is not a procedure sanctioned by the Ontario practice. The procedure approved by the majority of the Appellate Division seems to be a convenient one, and the controversy raised in relation to it is not a controversy as to rights or as to the jurisdiction of the Supreme Court of Ontario, but one as to whether this or that mode of bringing the points in dispute up for adjudication is the correct one. It would not be in consonance with the principles which have governed this court in dealing with such matters to examine questions of this character in the absence of some very special circumstances such as are not present in this case. Another ground of appeal is set up, and that is that the Appellate Division is wrong in its conclusion that the appellant has failed in his contention based upon the Statute of Limitations. A judgment for administration and partition was pronounced in 1916, and a vesting order was granted on the 29th May, 1919.

I am not satisfied, having regard to what took place before the Master in 1917, that by virtue of the master's report in that year a new starting point did not arise for the running of the statute. It is at least arguable that the case is within the last paragraph of Lord Cairns' judgment in Pugh v. Heath (1), where it is laid down that sec. 6 of the Act I do not read the judgment of Middleton J. as proceeding upon the ground that what took place amounted to a statutory acknowledgment of title. However that may be, I am satisfied that in effect what was done amounted to the bringing of the action within the meaning of sec. 5, " action " being defined by the first section as including " any civil proceeding."

The appeal should be dismissed with costs.

J.-The Ontario Consolidated Rule of Practice No. 615 reads, in part, as follows:- Rule 606 reads, in part, as follows:- Rule 615 confers a special summary jurisdiction. The conditions of its exercise are:- (a) that the applicant shall be "an adult person entitled to compel partition."

(b) that the notice of application shall be " served on one or more of the persons entitled to a share " in the land, estate or interest sought to be partitioned.

By an originating notice of motion, served only on the appellant, the respondents, as administrators of the estate of the late William B. Shields, applied in November, 1922, to a judge of the High Court Division of the Supreme Court of Ontario for a judgment for the partition or sale of the north part of lot 6, Con. 9, Tp. Mosa, Co. Middlesex, containing about 100 acres and said to be worth some $4,000 or $5,000.

This farm had belonged to the late James Shields, father of the appellant and of the late William B. Shields. James Shields died intestate in 1895, leaving him surviving a widow, now dead, and eight children.

In 1916 a judgment for the administration and partition or sale of the estate of the late James Shields was pronounced on the unopposed application of two of his sons, Andrew J. and George Shields. Upon the reference then directed the Local Master at London reported that the persons entitled to the equity of redemption in the lands formerly owned by the intestate James Shields were Andrew and George Shields, the applicants for administration and partition, were found to have no interest in the lands of their deceased father. This report was upheld on appeal by Mr. Justice Kelly, the Appellate Divisional Court and eventually by this court.

Subsequently on the 29th of May, 1919, Mr. Justice Sutherland, on the application of the several heirs so found entitled, including the present appellant and Annie and Jessie Shields, made an SHmms order (suggested to have been inofficious) confirming the TH report of the local master and vesting inter alia the lands E now in question in the persons who had been found entitled TRUSTS Co. by the local master. No further steps appear to have been Anglin J. taken in those proceedings.

On the return of the application now before us made by the present respondents, the appellant filed an affidavit in which he deposed in part as follows:- 4. Since the death of my said father, the occupation of the said land has been as follows:

Ever since the death of my said father and up to the month of September, 1921, I and my sister Jessie, and my mother, Annie C. Shields, resided continuously upon the said lands as our home and farmed the same in conjunction with the remaining lands constituting the farm of my said late father and adjoining the land in question herein.

Up to the year 1909, various other members of the family also resided upon the said farm and helped to do the work thereon.

(b) My brothers, William Shields and James Shields, paid occasional visits in the winter months to the vicinity of the said township of Mosa and on such occasions stayed with me at the said farm, but never on such occasions exercised any acts of ownership over the said farm or any part thereof or claimed to be the owners thereof.

And again:

The said appellant and the said Jessie Shields have continued in exclusive possession of the said lands as owners thereof, and they claim that in or about the year 1920 * * * the ten years prescribed by the I take it, therefore, that the disclaimer of the appellant

. was intended to operate only in favour of his sister, Jessie Shields, and that, if possessory title in her should not be established, he intends to retain and assert his interest as a co-owner.

Service on him was, therefore, probably a sufficient compliance with the requirement of Rule 615 that the notice of the application for partition or sale should be

"served on one or more of the persons entitled to a share."

The substantial objection raised to the application is that the applicants' title to the land has been extinguished since the former administration proceedings were had, by the expiry of the ten years' period prescribed by the

Statute of Limitations, which was running when those proceedings were taken. The question for determination was whether they stopped the running of the statute and established a new point of commencement.

When the application came on for hearing before Mr.

Justice Smith, in chambers, he took the view that the allegation of the appellant challenging the title of the respondents as barred by the Statute of Limitations raised a question that should not be disposed of on a summary application. He accordingly dismissed the motion for partition and directed that the costs of it should be costs in any action to be brought by the appellant for the determination of the question that had arisen.

On appeal this order was reversed by a Divisional Court which held (the Chief Justice of the Common Pleas dissenting) that the question of title was purely one of law and could readily and conveniently have been disposed of by the judge in chambers, all the necessary material having been before him, and could then be so dealt with by the Divisional Court-in fine, was such a question arising on the originating notice as r. 606 contemplates should be so dealt with.

The court held that the possession of the appellant and

Annie C. Shields and Jessie Shields had been so interrupted by the proceedings for administration and the investigation and the determination of title therein, that the running of the Statute of Limitations in their favour had been thereby stopped.

Mr. Justice Middleton, delivering the reasons for judgment of the majority of the SHELDS court said:- E

I regard this (the Master's report in the earlier proceedings determin- Ing the interests of several parties, confirmed on appeal) as a judicial WESTERN declaration of the rights of the co-owners, which is not now subject to re- TasTs Co. view. It is true that nothing is said in the report as to the actual occupa- Anglin J. tion of the lands and that it is quite consistent with the Master's finding that some one or other of the tenants in common may have been in exclusive possession and that if nothing had intervened this possessory title would in the end have ripened into a title under the statute good as against other tenants in common. But I think this gave a new starting point for the statute for no more effective acknowledgement of title can be imagined than a declaratory judgment of a court having competent jurisdiction.

Speaking of the vesting order, the learned judge added: Much might be said as to the necessity of the application for this order or as to its operative effect, but at any rate it is an acknowledgement by John J. Shields of the title of his co-tenants for he was a party to the application.

The Chief Justice dissented from the judgment on both points.

So far as the present appeal challenges the propriety of the Divisional Court determining the issue under the Statute of Limitations, the question presented is purely one of the discretion to be exercised under r. 606. It is essential to the summary jurisdiction conferred by r. 615 that the applicant should be " an adult person entitled to compel partition."

Whether the respondents met ;that requirement was controverted by the present appellant setting up title by possession in himself and his mother and sister. That question had to be determined before the:special jurisdiction conferred by r. 615 could be exercised.

Should the determination of it be by the judge applied to or the court hearing an appeal from his order, or should a trial to decide it be directed?

Obviously the matter was one for the exercise of judicial discretion and, having regard to all the circumstances, it is impossible to hold that the discretion of the Divisional Court was wrongly exercised, if, indeed, the matter be not one of practice and procedure on which we are not accustomed to entertain an appeal.

But I entirely agree with the view, which I understand to be held by Mr. Justice Middleton, that if there be any serious difficulty in ascertaining the applicant's status to apply under r. 615 or the rights of the parties, and especially if material facts are controverted (Lewis v. Green (1) ), the discretion given by r. 606 would be properly exercised by directing that an action be brought or an issue tried to determine these matters. To such cases the practice approved in Smith v. Smith (2), and Stroud v. Sun Oil Co. (3), is still applicable-Rule 606 (1) was in force as Rule 941 of the Consolidation of 1897, when those cases were before the court.

As to the substantial question whether the Statute of Limitations ceased running in favour of the appellant and his mother and sister by reason of the proceedings of 1916-19 for administration, etc., with the utmost respect, I am inclined to think that an affirmative conclusion cannot be based on anything in the nature of an acknowledgment.

The only acknowledgment recognized by the Statute of Limitations (R.S.O. [1914], c. 75, s. 14) is an acknowledgment in writing signed by the person in possession. Because the answer to a Bill in Chancery required to be signed by the defendant it was accepted as a sufficient acknowledgment.

Goode v. Job (4); and so with an affidavit, Tristram v. Harte (5).

The notice of motion for the vesting order in the present case does not serve as such an acknowledgment because not signed by the applicants in person.

The signature of it by their solicitors, as agents, is insufficient. Ley v. Peter (6). fail to find in the administration proceedings anything in the nature of an acknowledgment which would satisfy the statute.

But the judgment for administration and partition or sale, pronounced in 1916, I think stopped the running of the statute. Admittedly the appellant's mother and sister had not then acquired title by possession.

The present respondents and the other persons found entitled by the master still owned their respective interests in James Shields' estate.

The judgment for administration, etc., was, when pronounced, a judgment for the benefit of all parties interested and they were all bound by it. Any action which the present respondents could have brought to recover possession of their interest in the land or to try the question of title thereto would have been stayed by the court on application, because such matters were proper subjects for determination in the administration proceedings and full relief could be had under the existing order, r. 615 (3) Williams on Executors, ed. pp. 1624-6. The administration judgment operated not only in favour of the applicants for it and of creditors but also in favour of the estate-that is, of the personal representative. Re Ballard (1).

It was effective as a judgment in favour of all the heirs of James Shields who might substantiate their respective rights and interests in his estate in the course of the proceedings.

The present respondents' interest was so established and in their favour the statute ceased running when the judgment for administration was pronounced. Finch v. Finch (2); Uffner v. Lewis (3). The order for sale, likewise for the benefit of all parties interested, was quite inconsistent with the Statute of Limitations continuing to run in favour of one or more of them. In re Colclough (4); In re Nixon's Estate (5); Irish Land Commission v. Davies (6).

Rather, therefore, because the administration proceedings of 1916-19 should be regarded as an action (In re Fawsitt (7), brought for the assertion and establishment of the present respondents' interest in the lands in question and that interest was therein established, than because any acknowledgment of their title by the appellant and his mother and sister was involved in them, I am disposed to agree with the conclusion of the Appellate Divisional Court that it sufficiently appears that possessory title in Annie and Jessie Shields, such as would destroy the respondents' status as applicants for partition, does not exist.

However, any adverse determination by the present judgment of the claim to a possessory title put forward on behalf of Jessie Shields and of whoever is now entitled to represent her dead mother would not be binding upon them. They are not, as yet, parties to the proceedings and, when brought in in the master's office, will be at liberty to assert whatever rights they may be advised to claim and to require their determination under clause 3 of r. 615.