Canada Morning News Co. v. Thompson et al.

about 1922. In September, 1924, about a month before the plaintiff company was incorporated, at the request of one of its officers, the arrangement between these parties was put in writing. This document, in the nature of a lease, purports to be made by Louis Man Har and Mah Kaing Chee, as lessors; whereas the distress warrant is signed by Low Yee Quan and Wai Hon. The evidence shows that Louis Man Har had been both President of The League and editor of the Canada Morning News up to some time in 1924. It also appears from the evidence that the property in question was acquired about 1920 for the " headquarters " purposes of The League and was paid for by subscriptions of its members scattered throughout Canada. The agreement for its purchase was made in the name of two of such members; and the deed was originally drawn in favour of The Chinese Nationalist League of Canada, the unincorporated body in question. Difficulty having arisen as to registration of the title, however, it was decided to take the deed in the name of an incorporated branch of The League, viz., " The Chinese Nationalist League " (of Victoria, B.C.). This body had been incorporated under the Benevolent Societies Act of British Columbia in 1916. The legal title, thus vested in the incorporated branch, may have been held by it in trust for those members of The League who had contributed to the purchase of the property. The precise situation in this respect is not very clear in the record, but there probably arose a resulting trust in favour of such members of The League. If the distress had been made on behalf of these cestui que trustent, an interesting question might have arisen on such authorities as Vallance v. Savage (1); but it was not so made. Nor is there evidence of authority having been given by such members to the men who purport to be the lessors to enter into a lease binding upon them. On the whole evidence, it is impossible to say that the members of The League intended to become lessors and if the lease should be regarded as having been made personally by the individuals who purported to make it on behalf of The League, it is equally impossible to hold that the two gentlemen who signed the distress warrant in any wise represented them.

To extend the estoppel, which exists where the relationship of landlord and tenant is admitted or established and Tourson. which prevents the tenant questioning the landlord's title, so as to make it apply to a case in which the real question -.

is as to the existence of that relationship, seems to be wrong in principle and, with respect, is quite unwarranted by the authorities.

That an unincorporated society such as the League (although not within the prohibition of section 8 of the Companies Act, R.S.B.C., 1924, c. 38, inasmuch as it has not " for its object the acquisition of gain ") cannot become a lessee is established by several judgments, of which it is only necessary to refer to two,-Jarrott v. Ackerley tion (2).

These decisions rest upon the incapacity of an unincorporated and unregistered society to assert any position which is maintainable in law only by a legal entity. In principle, therefore, they are equally applicable whether the position so asserted be that of landlord or tenant. That the courts will, at the instance of a person claimed to be a tenant, determine the status of the alleged landlord for the purpose of ascertaining whether or not the relationship of landlord and tenant exists between them, and the consequent legality of a distress, seems to be settled by the decision of this court in Farwell & Glendon v. Jameson (3). Indeed, the very cases cited by the learned judges of the Court of Appeal proceed on this footing, because in both of them the court first determined that the relationship of landlord and tenant existed. Thus, in the Rennie case (4), the question was whether the admitted rights of the original lessor extended to his assignee of the reversion, i.e., whether the latter might be regarded as landlord of the tenant let in by the former and, as such, entitled to distrain. It was so held upon the express ground that J Rennie (the assignee) only stands in the shoes of Williams " (the lessor);

In Morton v. Woods (1), the court, having stated (p. 303) that the second objection went to the existence of the relationship of landlord and tenant between the parties, said of it:and the decision proceeded upon the ground that the ob- CJ.C. jections were not sustainable in fact, and that, therefore, the relationship of landlord and tenant subsisted between the parties. See too Baldwin v. Burd (2).

The evidence entirely supports the findings of the learned trial judge that the alleged lease purported to be made on behalf of the unincorporated body, The League; that "The Chinese Nationalist League" (of Victoria) had no connection with it at any time prior to the distress; and that any ratification of the acts of the defendants, Low Yee Quan and Wai Hon, by the Victoria society was impossible and wholly ineffective, inasmuch as the acts of these defendants did not purport in any way to be done on behalf of that society (Bowstead on Agency, 7th ed., p. 49), but, on the contrary, ex facie of the distress warrant itself and according to all the evidence, had been done on behalf of The League. That the alleged lease purported to be made on behalf of The League is also clear ex facie of the document of September, 1924, " the makers " thereof appearing to be This alleged lease is also signed by " Wong Ko, Treasurer of The Chinese Nationalist League " (of Canada) and, "Wong Kong Doo, Director of Canada Morning News." The evidence clearly discloses payment of rent as such by the Canada Morning News Company Limited, both before and after its incorporation, to the alleged landlord, in cash and by way of set off of amounts due for rent against amounts due to the Canada Morning News Company for printing. If the alleged landlord, The League, had been an entity capable of granting a lease, there might well be enough in these payments to found an estoppel against the alleged tenant denying that the relationship of landlord and tenant subsisted between it and the alleged landlord. But, in order that there should be such . an