Majority
balance unpaid shall on that date become due and payable by the purchaser to the vendor in lawful money of Canada." The words " in lawful money of Canada " are thus NEW introduced, and, if they had been expressed at the end of clause 1, the point in question could not have arisen, but, in my view, these words are necessarily implied at the end of the latter clause. " The whole purchase money," according to its meaning in the concluding lines of clause 1, must be figured in currency, and it is only in currency that it can forthwith become due and payalble.
I would dismiss the cross-appeal with costs.
Judgment of the Court
J.-The defendants, the corporation of the township of Bucke, J. I. Ritchie and Alphonse Mondoux (in the courts below J. N. Maloof and N. N. Maloof were also defendants, but have not appealed), appeal from a judgment of the second Appellate Divisional Court of Ontario which reversed, Latchford C.J. dissenting, the judgment of the trial judge, Mowat J. The litigation arose out of the following circumstances.
On January 30th and February 1st, 1907, James A. Mac- TowNsHIP rae and James A. Mulligan obtained two grants in fee or Buc"F simple from the Crown, in right of the province of Ontatio, the first of mines, minerals and mining rights, and the Co., second of surface rights, i.e., of land without the mines and minerals (1).
Mignault J.
In the first grant, the property is described as follows: The mines, minerals and mining rights in, upon and under all that parcel or tract of land situate, lying and being in the township of Bucke in the district of Nipissing, in the province of Ontario, containing by admeasurement forty acres be the same more or less, which said parcel or tract of land may be otherwise known as follows, that is to say, being composed of the northeast quarter of the south half of lot no. 14 in the first concession of the said township of Bucke.
The description of the property conveyed by the second grant is the same as that 'contained in the first grant from the words "all that parcel or tract of land ", inclusive, to the end of the extract above quoted. In this grant, ores, mines or minerals are excepted.
The sale of the mining rights was made under The Mines Act, 1906, 6 Edw. VII, c. 11, and, as shewn by the price paid ($60.00), was of "mining rights" as distinguished from " mining lands " (s. 174 of the Act).
Both grants were registered under The Land Titles Act at North Bay, the grant of the mining rights being entered as parcel 4059 and the grant of the surface rights as parcel In October and December, 1907, Macrae and Mulligan assigned to the respondent company their rights in the properties conveyed by these two grants, each of them transferring by separaite transfers the mining rights and the surface rights.
In these transfers. the mining rights (referred to as parcel 4059 in the register for the district of Nipissing) are described as the mines, minerals and mining rights in, upon and under the land hereinafter tparticularly described, namely, the northeast quarter of the south half of lot no. 14 in the first concession of the township of Bucke, containing by admeasurement forty acres, more or less.
And the description of the surface rights (referred to as parcel 4163 in the same register) is as follows:
the land hereinafter particularly described, namely: the northeast quarter, etc., etc. (ut supra).
(1) The interest of Macrae was described as a three-quarters interest and that of Mulligan as a one-quarter interest.
[19271 The mining rights and the surface rights, thus registered separately, so remained on the register of land titles in the name of the respondent company for more than ten years. or The parcel numbers, however, were changed at some time which is not mentioned, apparently upon the establishment of a new land titles office for the northern division of J. Nipissing, and the parties agree that parcel 4059 (the mining rights) and parcel 4163 (the surface rights) in the register of Nipissing became respectively parcel 2831 and parcel 2899 in the register for " Nipissing North Division."
It also appears that, since the fax sale and transfer to which I will refer, the north half of the northeast quarter of the south half of lot no. 14, alleged to have been sold for taxes, is described as parcel 928 in the register for
" South Temiskaming " in the land titles office at Haileybury. I merely mention this parcel number without for the moment entering upon the question whether it covers the surface rights, or the mining rights, or both.
The property in question lies within the territory administered by the corporation of the Township of Bucke, which I will call the Corporation.
Municipal taxes in respect of this property were imposed by the corporation the respondent, and these taxes for the years 1916, 1917 and 1918 were not paid and remained unpaid for more than two years thereafter.
In 1920, the corporation caused a sale by auction to be effected for these taxes, and the purchaser was one John
I. Ritchie. Subsequently the warden and the treasurer of the township executed a transfer in favour of Ritchie, the construction of which is in issue between the parties, the respondent contending that it comprised merely -the surface rights, while the appellants argue that with the surface rights the mining rights were conveyed to Ritchie.
This transfer, which is undated, was filed in the land titles office at Haileybury on the 11th of June, 1921.
S. 66 of The Titles Act (R.S.O., 1914, ch. 126) requires that, where a sale is made for taxes, a notice of the lodging of the transfer for registration be given to the persons who appear by the register to be interested in the land, and the deputy local master of titles at Haileybury sent a notice by registered letter to " Macrae Mining Co.
* Ltd., Try .Toronto, Out."' The respondent's office is at but as the respondent had not registered its address as required by s. 112 of The Land Titles Act, and as no address is given in the other registered documents, the respondent cannot rest anything on insufficiency of the notice.
Milt
J
The transfer was registered and Ritchie's name was entered in the register as owner (vested in fee) of parcel 928 " with an absolute title of the mines, minerals and mining rights in, upon and under."
He received from the local master of titles a certificate of title under The Land Titles Act for parcel 928.
He executed several transfers of parts of or shares in parcel 928, and the transferees were made defendants in this action.
The record contains a copy of the register with respect to parcels 928 and 2,899, as the register stood on the 3rd of November 1925, for parcel 928, and on the 4th of November, 1925, for parcel 2,899. In the register, parcel 928 appears to stand for the mining rights of the north half of the respondent's forty acres, while the surface rights in these forty acres are still called parcel 2,899, N.N.D. Under these circumstances, the respondent, in May, 1925, brought an action against the appellants and the two Maloofs, asserting its right of ownership in these parcels, and asking that the tax deed or transfer 'be declared null and void.
The learned trial judge dismissed the action on the ground that the respondent was too late to impeach the tax deed, in view of s. 178 of The Assessment Act (R.S.O., 1914, ch. 195).
This judgment was, however, reversed by the Appellate Divisional Court which decided, on the construction of the tax deed and transfer, that it covered only the surface rights. The learned judges considered the description in the deed ambiguous with its reference to the north half of parcel 2,831 followed by a particular description which they thought could only apply to the surface rights. Being of the opinion that the mining rights, as such, were not assessable (and in this Latchford C.J. concurred), they held that the deed should be restricted to the surface rights, for otherwise it would be void: ut magis valeat quam pereat.
In my opinion, the mining rights, as such, were not assessable for municipal taxes. The relevant section of The Assessment Act (R.S.O., 1914, ch. 195) is section 40, subsections 4, 5 and 6 of which are in the following terms: Mr. Slaght, for the appellants, argued that as, under s. 2, ss. (h), of The Assessment Act, the words " land," " real property " and " real estate " include all mines, minerals, etc., in and under land, and as, in a sale from subject to subject of land containing minerals, the latter pass to the purchaser without special mention, the tax sale of the land carried with it the minerals, and consequently Ritchie became owner of these mining rights.
He also contended. that, inasmuch as s. 40 of The Assessment Act is under the heading "Valuation of lands," the provisions of ss. 4 must be taken to mean, not that minerals, qua minerals, cannot be assessed, but that their value is not to be considered in valuing the land subject 'to assessment.
The second contention, in my opinion, ignores the plain language of the statute. Subsection 4 states that, subject to subsection 8 (which has no application here), " the minerals in, on or under such land, shall not be assessable." The meaning of the three subsections, when read together, is obvious. Minerals, as such, that is to say minerals considered as a subject of ownership distinct from the ownership of the land in which they are contained, are not assessable (subsection 4). Land containing minerals is however assessable as land, but it is not to be assessed at less than the value of other land in the neighbourhood e-, clusively for agricultural purposes (subsection 5). And the income derived from a mine or mineral work, which supposes that minerals have been extracted from the land, is also assessable (subsection 6).
The question involved in Mr. Slaght's first contention is: What, on the proper construction of the tax deed and transfer, was the subject of the sale?
We have not the assessment rolls for the years 1916, 1917 and 1918, which Buc"E were destroyed in the great fire at Haileybury some years ago. We know, however, that on the register of the land . L,,. titles office the mining rights and the surface rights were entered as separate subjects of ownership, and each had a parcel number distinguishing it from the other. In the grants from the Crown and in the assignments from the original grantees they were also treated as separate properties.
Looking now at the tax deed and transfer, which follows the form prescribed by The Assessment Act (section 173 and form 12), it recites that a warrant had issued under the hand of the warden and seal of the township commanding the treasurer " to levy upon the land hereinafter mentioned, for arrears of taxes due thereon," and that, on the 16th of February, 1920, the treasurer had sold by public auction to John I. Ritchie " that certain parcel or tract of land or premises hereinafter mentioned," at and for the price of $136.52, on account of arrears of taxes " alleged to be due thereon " up to the 31st of December, 1918, together with costs. Then follows the operative clause, by which I think it must be presumed, in the absence of the assessment rolls, that the description in this transfer conformed to the description of the property assessed in the assessment rolls for 1916, 1917 and 1918. That -the property sold and transferred was the property which had been assessed is also the clear purport of the recitals of the transfer. We have, therefore, assessments in the terms of the description in the transfer. It seems unquestionable that this description is. ambiguous, for parcel 2831 on the register, at the time of the sale, comprised only the mining rights, while the particular description of the land which followed was a description of the land in which such mining rights would, if not excepted, be included.
It has already been stated that the mining rights, as J. such, were not assessable. On, the other hand, the corporation could assess the land, including the underlying minerals. The description of the subject of the assessments being ambiguous, the presumption is that the corporation acted within the limits of its jurisdiction and assessed what it had the power to assess, for otherwise the assessments would be void.
This is the familiar rule of construction expressed by the maxim ut res magis valeat quam pereat
(Broom, Legal Maxims, p. 343 and following).
There is no doubt that the surface rights and the mining rights were severable. Since the grants from the Crown, they had been dealt with as separate and distinct hereditaments. Nevertheless, ownership of both having vested in the same corporation, there could be valid assessments of the land containing and including the minerals, which the statute (s. 40, ss. 5) expressly contemplates. To make such assessments was apparently intended, and the description of the land-, without exclusion of minerals, includes the minerals therein contained. The assessment should, therefore, be treated as assessments of mineral land, and the words " Parcel number 2831, etc.," may be disregarded or struck out as a falsa demonstratio, or as inserted by mistake. Without these words, there is adequate and sufficient description of the subject of the assessments, and it is not material in what part of the description the falsa demonstratio occurs (Broom's Legal Maxims, 9th Ed., p. 404,
Watcham v. Attorney General of the East Africa Protectorate (1).
The assessments being regarded as of mineral lands, and the transfer being construed according to the same rules, and in conformity with its recitals of a levy upon and a sale of " the land " described, Ritchie acquired that land including the minerals in and beneath it. This also applies to the interest that Mondoux took by virtue of the transfer which Ritchie made to him.
Under these circumstances, it is unnecessary to invoke s. 178 of The Assessment Act, on which the learned trial J. judge relied, and which renders valid and binding a tax sale unless it be questioned within two years, unless indeed to meet other objections to the tax sale not relied upon in this court by the respondent.
Section 42 of The Land Titles Act confirms in the appellants Ritchie and Mondoux an absolute title to what was transferred to them.
It appears unnecessary to discuss the question of merger referred to in the arguments and in the judgment appealed from. It may, perhaps, be open to question whether merger is an appropriate term to describe the effect of the ownership of what had been separate hereditaments in the same area coalescing in the same person.
The appeal should be allowed with costs here and in the Appellate Divisional Court and the judgment of the trial judge should be restored.
Appeal allowed with costs.
Statutes and regulations cited
-
Unresolved citations
- s. 174
- s. 112 of The Land Titles Act
- s. 178 of The Assessment Act
- section 40
- s. 2
- s s. 40 of The Assessment Act
- ss. 4
- section 173
- s. 40
- ss. 5
- Section 42 of The Land Titles Act