Marshall v. Fournelle

[19271 STANDARD TRUSTS COMPANY (PLAIN- APPELLANT;* *Oct.

TIFF)

.................................

*Dec. 1.

AND

MUNICIPALITY OF HIRAM AND

RESPONDENTS. W.

ON APPEAL FROM THE APPELLATE DIVISION THE SUPREME A sale and transfer of land for unpaid taxes under the Alberta Tax Recovery Act of 1919, even though made prior to January 1st, 1924, can be successfully attacked on the ground that the notice required by s. 42, (amended by 1921, c. 25, s. 13) had not been sent to a " person interested " in the land (in this case a mortgagee), as the curative provision in that Act, s. 44a as enacted by 1923, c. 5, s. 26c, does not then apply.-The failure to give this notice is a defect so fundamental that it rendered the transfer ineffectual. The statute makes the giving of such notice a condition precedent to the exercise of the power to execute and deliver a transfer, and section 44a contains no provision to cover the absence of the notice.

A "person interested" in land sold for taxes has an absolute right to the formal notice prescribed by the Act, even if that person had knowledge, before the expiration of the delay for sending the notice, that the land had been so sold. Toronto v. Russell, [19081 A.C. 493 dist. Judgment of the Appellate Division (22 Alta. L.R. 148) reversed. APPEAL from the decision of the Appellate Division of the Supreme Court of Alberta (1), reversing the judgment of Boyle J. at the trial and dismissing the appellant's action.

The judgment of the trial judge declared a sale of a quarter section of land for taxes to be illegal and void and directed the cancellation of the certificate of title issued to the respondent Lamrock, who was the purchaser at the tax sale. The sale was made for arrears of taxes for the year 1920 and took place on 29th October, 1921.

The transfer is dated 30th November, 1923, and registered 21st January, 1924, and the certificate of title was issued some time afterwards. The consideration of the transfer was $75.35 The respondents rely for the support of the sale and CJ.C. and Duff, Mignault, Newcombe and Rinfret JJ.