Paquin et vir v. Cité de Verdun

The plaintiff and his wife were the registered owners of certain land as joint tenants. The wife, without telling her husband what she was doing, conveyed "all her interest in and to" this property to her daughter by a former marriage. From the time of its execution until after his wife's death, three years later, the plaintiff was unaware of the existence of the deed which remained unregistered until the day following the death of the wife, when the latter's daughter made application for its registration. The Registrar of Titles, before registering this three-year old deed, omitted to make inquiry as to whether the grantor was dead or alive. The husband brought an action for recovery from the assurance fund under s. 223(1) of the Land Registry Act, R.S.B.C. 1948, c. 171. The trial judge ruled in favour of the plaintiff but the Court of Appeal held that his action should be dismissed. The plaintiff appealed to this Court.

Held: The appeal should be dismissed.

The opening words of s. 35(1) of the Act "except as against the person making the same" expressly make operative an unregistered instrument against the party making the same. Davidson v. Davidson, [19461 S.C.R. 115, applied; Wright v. Gibbons (1948-1949), 78 C.L.R. 313, distinguished. It was, therefore, apparent that the deed in question operated as an alienation of the wife's interest, and the very fact of her interest being transferred to a stranger of itself destroyed the unity of title without which a joint tenancy cannot exist at common law. The effect of the deed was to change the character of the husband's interest from that a joint tenancy to that of a tenancy in common and thus to extinguish his right to claim title by survivorship.

Having regard to the state of the register and to the fact that the unregistered deed was operative to sever the joint tenancy at common law, the Registrar was under no obligation to inquire as to whether the grantor was dead or alive at the time of application for the registration of the deed. There being no suggestion of any other omission, mistake or misfeasance on the part of the Registrar, the plaintiff's claim necessarily failed.

Kerwin CJ. and Locke,

Cartwright,

Martland and Ritchie JJ.

S.C.R.