Martindale v. Powers

the judgment of the Superior Court.

This was an action brought by Alva Martindale in his quality of tutor to the minor child James Curtis :-Sir Henry Strong C. J. and Fournier, Taschereau, 'Gwynne and Sedgewick JJ.

(1) Q. R. 1 Q. B. 144.

Martindale, universal legatee of his grandfather Curtis Martindale, and by Eli Martindale in his quality of curator to the substitution of property created by the last will of the late Curtis Martindale, claiming from Susan M. Powers widow of the late Curtis Martindale for the minor child and the substitution a certain farm being cadastral lot no. 2,414 of the township of Stanbridge.

Susan M. Powers, the respondent, pleaded 1st. a general denial and 2nd. a special plea that under the terms of a don mutuel by marriage contract she was entitled to retain possession of the land until paid the amount due to her, viz.: $5,000.

The facts as disclosed by the pleadings and the evidence are as follows:

Two years prior to his marriage with respondent Curtis Martindale, who was then a widower, had made a donation of the farm in question to his son John Martindale, under the usual terms of supporting his father during the remainder of his natural life, and with the condition that in the event of the son predeceasing the father the title should revert to the latter. Under this agreement John Martindale and his family went to reside with the father, Curtis Martindale, upon this farm, but some months prior to respondent's marriage with the father, Curtis Martindale, the son, John Martindale, had bought a farm for himself from a Mrs. Whitman, on the opposite side of the highway from the farm in question in this case, and had removed with his family to the Whitman farm, and was living on it.

On the 11th December, 1869, and prior to the execution of his marriage contract, a notarial document was executed between Curtis Martindale and his son John, which recites in the first place the terms of the donation deed and then declares that as Curtis Martindale has proposed to said John Martindale to occupy and cultivate said land (i. the original home farm) and to take the management of the stock the said John Martindale agrees to pay to said Curtis Martindale $200 yearly in lieu of support, taxes, maintenance, and as security therefor he mortgages his own farm, i. e. the farm he had bought from Mrs. Whitman, and upon which he was then living. The agreement goes on to recite that. even if said John Martindale should at any time thereafter be called upon to resume the cultivation of the land, he should be exonerated from the care of horses, cows, belonging to Curtis Martindale.

Then by marriage contract dated the same 11th December, 1869, Curtis Martindale settled upon his wife, (present respondent) the property, real and personal, of which he might die possessed to the extent and value of $5,000 "save and except therefrom the farm and personal property thereon now in the occupancy of John Martindale."

On the 9th December, 1870, the deed of donation to John Martindale was for valuable consideration resiliated and $900 were paid to him by Curtis Martindale for improvements,

Curtis Martindale died 27th March, 1885, having previously to wit, on 10th November, 1888, made his last will whereby he named as his residuary legatee, without designation of any specific property, the eldest of his own four sons who might be living at the time of the testator's decease, and his widow took possession of all his property including the farm claimed by the appellants.

There was no special plea specifically denying the status of the plaintiff, but oral evidence was given to prove the status which was objected to.

It was admitted that no inventory had been made of the deceased's estate.

La Banque Union v. Gagnon (1); Reinhardt v. Davidson ; Gibeau v. Dupuis (3); Bain v. City Montreal

But moreover there is sufficient evidence in the case of the status of the minor child as the courts below have found as a matter of fact.

On the principal question on this appeal viz., as to the farm reserved in the marriage contract, we contend that the intention of the parties as expressed by the stipulation in the marriage contract was that the said farm and the movables should be absolutely reserved from the don mutuel, and that as the farm claimed is shown to be the farm reserved from the don mutuel in the marriage contract it is not material whether it came into the hands of the testator by virtue of the resiliation of the donation to his son John under some of the provisions of the donation, or by virtue of the voluntary resiliation made of said donation as was actually done.

The don mutuel in the marriage contract of $5,000 to be taken by the survivor out of the property left by the predeceased is a donation d cause de mort, assimilated to a particular legacy, and the respondent survivor cannot retain the property claimed, as her right is simply to get $5,000 out of the estate. Art. 0.0. Respondent at death of Curtis Martindale was left in possession of his whole estate, movable (moneys, claims, goods and chattels, &c.,)

and immovable. She has appropriated the whole of the movable estate which was of considerable value without any inventory and she cannot retain the farm claimed by appellants As-qualites without accounting for what she has got already and irrespective of the amount of the balance due her and of the value of the farm.

The exclusion of the property from the don mutuel, if it applies to the farm in dispute, had its raison d'dtre only by reason of one of the above circumstances happening; the parties cannot be presumed or held to have contracted with reference to the unforeseen case of a voluntary resiliation of the deed of donation, and. the acquisition by Curtis Martindale of the property by onerous title.

On the 9th December, 1870, after the marriage, the father and son resiliated the deed of donation, the father paying the son $900 to indemnify the latter for moneys advanced and labour done and performed in improving the premises and a mutual acquittance and discharge of all obligations up to that date was given. The renunciation by Curtis Martindale of the sum of $200 per annum, and the payment by him of $900 to his son, impoverished and reduced his estate by so much and diminished respondent's chance of being paid her marriage settlement at the time of his decease. By the deed of 9th December, 1870, there was an interversion of title and Curtis Martindale became the proprietor of that farm, not in virtue of any condition .of said original donation but by an onerous title, which was not in existence at the date of the marriage contract, and stands therefore quoad that contract entirely in the light of a distinct and new acquisition secured at the cost of the estate settled upon respondent by the marriage contract, and must be held liable for the stipulation and effect of that contract.

The reasons for the exclusion which existed at the time of the contract have disappeared. The property belonged to Curtis Martindale in the same manner as if he had acquired it from a stranger and passed to respondent in virtue of her marriage contract. If appellants wanted to get possession they should have had made an inventory and until that is done respondent is entitled to retain possession.

:-Curtis Martindale, a widower, the testator under whose will the- plaintiff claims (in the quality of tutor of James Curtis Martindale, a minor) married in 1869 the respondent and defendant Susan Powers, under a contract of marriage by which community was excluded, and don mutuel to the extent of $5,000 was stipulated.

Previous to this, in 1867, Curtis Martindale had made a deed of donation of a farm to his son John Martindale.

By the clauses and stipulations of this deed of donation the son John Martindale was to work the land; the donor, Curtis, was to live on it; the produce was to be equally shared, and Curtis, the donor, was to furnish half the seed.

On the eve of the marriage, by a deed executed before the same notary as the marriage settlement and dated the same day, 11th December, 1869, the deed 1867 was modified by providing that Curtis should work the farm himself, and that John, instead of working the farm and giving his father half the produce, should pay him $200 a year. For the payment of the annuity thus stipulated for John hypothecated a farm which he had acquired by purchase, not from the testator but from the widow Whitman.

marriage settlement expressly excluded from the don mutuel the farm and personal property described as being " now in the occupancy of John Martindale, of ief the said township of Stanbridge, yeoman, one of the Justice. sons of the said Curtis Martindale, which said property both real and personal is not included nor intended to be included as forming any part or parcel the said sum of $5,000."

The first question is whether this exclusion or exception applies to the farm which was the subject of the donation by Curtis to John or to the Whitman farm, which John had hypothecated to his father to secure the annuity of $200 under the deed of the 11th December, 1869, varying the original deed of donation. Mr. Justice Tait held that the exception applied to the farm in the donation deed.

Chief Justice Lacoste and Mr. Justice Hall, though they decided the case in the respondent's favour upon another and distinct ground, held that the exception did not refer to the donation farm but to the Whitman farm.

Subsequently the testator made his will which contained this provision under which the plaintiff claims:

Subsequently to the marriage and on the 9th December, 1870, the testator for the consideration of $900 bought out John altogether as regards the farm previously given him.

The present is a possessory action to recover the excepted farm. The pleas were the general issue, and a special plea which however does not conclude to the dismissal of the action but merely prays imposition of Chief terms in the defendant's favour.

The following points arose:

The Court of Queen's Bench answers this objection by showing that the want of acceptation was a relative not an absolute nullity, and that the acceptation subsequent to action had a retroactive operation, for which proposition the Chief Justice refers to authors who establish this to be the law.

appellants further say that the judgment appealed from is ultra petita as the special plea does not conclude to the dismissal of the action.

The plain answer is that the general issue does so conclude.

The appeal must be dismissed with costs.

FOURNIER J.-Le 11 d6cembre, 1869, fen Curtis Martindale avait fait avec Susanne Powers, son 6pouse, intim6e en cette cause, un contrat de mariage contenant, entre autres conventions matrimoniales, la suivante:

Au d6chs de Curtis Martindale sa veuve, l'intimbe, a pris possession de toutes ses propri~t6s, comprenant la terre et la maison dans laquelle vivait le dit Curtis MIartindale lorsqu'il s'est mari6 et dans laquelle v6cu avec elle jusqu'd son d6chs.

Curtis Martindale est d6c6d6 le 27 mars 1885, ayant pr6alablement fait son testament le 10 novembre 1883, instituant pour son 16gataire r6siduaire le fils aln6 de ses quatre enfants qui serait vivant A 1'6poque de son d&cs.

La d6claration en cette cause all6gue que James Martindale, enfant mineur, d'environ sept ans, fils d'Eli Martindale, remplit la condition du testament et se trouve en cons6quence le 16gataire r6siduaire d6sign6, et r6clame par l'action prise en son nom par son tuteur, Alex. Martindale, la terre et la maison dans laquelle a v6cu Curtis Martindale, et dont sa veuve, l'intim6e, a pris possession en vertu de son contrat de mariage. L'intim6e r6pond A cette action qu'elle a droit A ces propri6t6s en vertu de la clause ci-dessus cit6e de son contrat de mariage avec le testateur, dans lequel il a t6 stipul6 que le survivant des deux prendrait dans la succession du pr6d6c6d6 des propri6t6s mobilikres et immobili6res au montant de $5,000.

Elle a aussi all6gu6 que 1'identit6 du mineur r6clamant n'avait pas 6t6 suffisamment 6tablie et qu'il n'a pas t6 prouv6 16galement qu'il soit le fils 16gitime de Elie Martindale. Elle a de plus positivement ni6 que la propri6t6 qu'elle d6tient soit celle qui a exclue du don mutuel par son contrat de mariage.

Il est vrai que la preuve de la filiation du mineur n'a pas t6 faite en la manibre ordinaire par la production d'un acte de bapt6me.

consiste dans un certificat du secr6taire-tr6sorier donu6 en vertu de la 39 Vict c. 20 et de la 50 Vict. c. 7.

L'intim6e n'ayant point soulev6 d'objections sp6ciales A cette preuve il n'est pas n6cessaire de d6cider dans la pr6sente cause de la force probante de ce certificat, que les Statuts refondus de la province de Qu6bec (art. 5784) semblent avoir mis au rang des actes de 1'6tat civil.

L'appelant ayant pris dans la d6claration la qualit6 de tuteur A James Curtis Martindale, enfant mineur d'Eli Martindale et d'Alma G-ardner, cette qualit6 doit 6tre cens~e admise dans notre pratique, A moins qu'elle ne soit sp6cialement ni6e.

L'art. 144 C. P. d6clare que tout fait dont l'existence ou la v6rit6 n'est pas express6ment ni6e on d6c1ar6e n'6tre pas connue est cens6 admis.

L'intim6e a aussi soulev6 l'objection que le tuteur .n'6tait pas autoris6, lors de 1'6manation de l'action, A accepter le legs pour le mineur. L'autorisation, il est vrai, donu6e par le conseil de famille, h accepter pour le mineur la succession de son grand'phre, n'a t6 donn6e qu'apris 1'institution de l'action.

Ce d6faut d'autorisation n'est pas consid6r6 comme uine nullit6 suffisante pour faire renvoyer 1'action; il suffit qu'elle soit donu6e pendant 1'instance.

Au mirite la question unique est de savoir si la propri6t6 dont l'intimbe est en possession est la meme que celle qui a 6t6 exempt6e par le contrat de mariage de 1'effet du don mutuel. L'intimbe croyant que cette clause doit encore avoir son effet s'est efforc6e de nier que ce fut la m~me propri6t6 et a pr6tendu que c'6tait une autre qu'elle n'a pu indiquer ; mais en d6pit de ses d6nigations il est clair que c'est la mAme.

Par son acte de donation A John Martindale Curtis Martindale s'6tait r~serv6 certains droits sa vie durant avec droit de retour de la proprit6 dans le cas son fils le pr6d6c6derait.

La pr6tention que la propri6t exclue serait celle qui a 6t6 achet~e par John Martindale de la veuve Martindale est insoutenable, parce que Curtis Martindale n'a jamais eu de droits stir cette propri~t6 qui ne lui a jamais appartenu et ne lui appartenait pas dans le temps du contrat de mariage.

L'exclusion eut 6t6 une absurdit6 palpable, mais il avait des raisons d'exclure I'autre sur laquelle il n'avait qu'un droit de retour et que d'ailleurs il avait donn6e A son ills. Il 6tait raisonnable MAde l'exclure ne fut-ce que pour pr6venir son 6pouse qu'elle ne devait pas compter sur cette propri6t6 dans laquelle il vivait alors.

J.

Il est 6vident par le t6moignage de l'intim6e qu'elle a parfaitement compris que la propri6t6 qu'elle occupe est celle qui a t6 exclue du don mutuel par le contrat de mariage. Mais par suite des transactions faites entre Curtis et John Martindale cette clause d'exclusion n'at-elle pas cess6 de s'appliquer A la propri6t6 en question ? Cette propri6t6 avait d'abord t6 donn6e par Curtis A son fils John Martindale le ler septembre, 1867 A diverses charges et obligations et entre autres, A celle de faire vivre son phre et de pourvoir A ses besoins. Le jour mime du contrat de mariage, d~cembre, 1869, par acte pass6 par le notaire qui a fait le contrat de mariage, la donation fut modifi6e en par le donataire consentant A payer A son phre une rente de $200, an lieu des charges et obligations stipul6es en la dite donation.

Jusqu'A present la proprit6 rclambe est demeur~e sujette a l'exclusion du don mutuel, mais en est-il de mime apr~s l'acte de r6siliation de la dite donation ? Le 9 septembre, 1870, durant I'ann6e qui a suivi le mariage, Curtis et son fils John Martindale ont, par acte authentique, r6sili6 et annul l'acte de donation de la susdite propri6t6 et d~clar6 qu'il serait consid6r6 annuld de mime que s'il n'avait jamais exist6 et que la terre y dsign6e, savoir: la moiti6 sud du lot 4, dans le 4me rang des lots du township de Stanbridge 6tait redevenue la propri6t6 du dit Curtis Martindale, ses h6ritiers et ayant cause.

Cette rsiliation fut faite pour bonne et valable consid6ration, savoir: pour la somme de $900 pour indemniser le dit John Martindale des am6liorations et r6parations faites sur la dite propri6te, sur laquelle somme il reconnht et confessa avoir requ celle de $200 d6s avant 1'ex6cution du dit acte, et quant la balance de $700 elle fut d6clar6e payable en la mani6re stipul6e au dit acte, avec hypoth6que sur la propri6t6 indiqu6e an dit acte.

J. Par cet acte de r6siliation Curtis Martindale a obtenu un titre complet et parfait de la dite proprit6 qu'il avait d'abord donn6e i son fils et dans laquelle il ne s'6tait r6serv6 qu'un droit de retour an cas son fils le pr&d6cderait.

Ayant acquis un droit absolu la dite propri6t6 pendant la dur6e du mariage, cette propri6i6 est partant devenue sujette h l'effet de la clause du don mutuel qui s'6tend A toutes les propri6t6s mobili6res immobilibres qui pourraient 6tre acquises par les conjoints pendant la dur6e de leur mariage.

L'exclusion a done cess6 d'exister et la propri6t6 doit 6tre consid6r6e comme une nouvelle acquisition faite par Curtis pendant le mariage et se trouve partant sujette au don mutuel.

Il est vrai cependant que la femme n'a droit A ces propri6t6s que jusqu'd concurrence du montant de $5,000 qui forme le don mutuel.

Mais comme il n'a. pas 6t6 fait d'inventaire il n'est pas possible de d6cider si les propri6t6s dont l'intim6e est en possession valent plus que le montant du don mutuel.

Il n'a t6 fait aucune preuve pour 6tablir ce fait.

Le demandeur 6s-qualit avant d'exercer son action aurait dfi plut6t faire faire inventaire.

aurait alors pu constater si l'intim6e avait en sa possession plus que la somme & elle due, et la cour aurait pu adjuger en cons6quence ; mais dans 1'6tat oA est la cause la cour, en lui accordant ses conclusions, courrait le risque de d6poss6der inutilement l'intim6e, A laquelle, probablement, aprbs inventaire, il faudrait restituer les m6mes propri6t6s. Par tons ces motifs je suis d'avis que l'appel doit 6tre renvoy6 et 1'action renvoy6e avec d6pens.

J.-The questions raised by the respond- M-I.

ent as to the status of the appellant, and as to the want of authority of the appellant's tutor to accept the legacy in question, have been determined against her by both courts below, and relate to questions of practice and pleading upon which we, as a general rule, do not interfere with the rulings of the provincial courts. I would, moreover, add in this case that the respondent's contentions on these two points are unfounded. As to the proof of appellant's status, by the pleadings the only fact put in issue and specially denied by the respondent is the identity of the farm reserved in the marriage contract from the operation of the don mutuel d cause de mort therein contained, with the farm left by the late Curtis Martindale at his death, and sought to be recovered in this cause by appellant. Now, the qualities and status of the appellant and of' the minor child, James Curtis Martindale, as well as the defendant herself, as mentioned and described in the writ of summons, and all the other allegations of the appellant's declaration, not having been specially denied are deemed by law to be admitted by defendant. As to the acceptation by the tutor of the legacy in question with the authorization of the family council I deem it quite sufficient, if it was necessary at all, though made pendente lite. Demolombe (1) is explicit on this point :

int6rt I am clear, with the two courts below, that the respondent cannot have the appellant's action dismissed upon these two grounds.

Upon the real merits of the case I am of opinion that the Superior Court's judgment which maintained the appellant's action was right, and that the Court of Appeal was in error in reversing it.

The point taken by the respondent upon the identity of the farm claimed by the appellant with the farm excluded from the don mutuel in the marriage contract seems to me untenable. That Curtis Martindale could have intended to exclude the Whitman farm from this donation is a proposition that cannot seriously be contended for. Why exclude that Whitman farm ? It never belonged to him ; he had no claim whatever to it. I have no doubt that, as found by the Superior Court, the farm excluded is the farm now claimed. And the Court of Appeal in its formal judgment does not find the contrary, but bases its conclusion to dismiss the appellant's action upon the ground that as the farm now claimed by the appellant reverted back to his father by the restitution of September 9th, 1870, which the court holds is an onerous title, therefore the exception in the marriage contract has no effect, and the farm consequently passed to the respondent. cannot assent to that proposition. That is reading out of the marriage contract the exception or reservation it makes in clear terms. The respondent may possibly have some rights against her husband's succession. That we have not here to determine, one way or the other. But she has, in my opinion, no title to the home farm itself. A farm was clearly excluded from her don mutuel. That farm, I say, is and cannot be any other but the home farm.

Now this home farm clearly belonged to Curtis Martindale at his death, and consequently by his will passed to his son, the appellant.

I have no doubt on the case, and would allow the appeal.

J.-By the deed of September, 1867, Curtis Martindale gave and granted, with warranty, to his son, John Martindale, the S. of lot no. 4, in the 4th range of the township of Stanbridge, together with all the live stock and implements of husbandry and all other personal property enumerated in a schedule annexed to the deed, to have and to hold unto and to the sole use of the said John Martindale, his heirs and assigns, forever, subject to certain reservations and conditions therein contained; and first and expressly upon condition that the said John Martindale should till and cultivate the said tract of land during the natural life of the said Curtis Martindale, and account for and deliver to the said Curtis -the equal undivided half of all the crops which should be raised and gotten from the said land, and one equal moiety of all the butter and cheese that might be made thereon, and one equal moiety also of all the live stock that might be raised from the stock mentioned in the said schedule, yearly and every year during the lifetime of the said Curtis; and upon condition further that in addition to the above, the said John Martindale should support and maintain the said Curtis as well in sickness as in health, in all things becoming his rank and condition for and during his natural life; and it was agreed that the said Curtis and the said John should bear and pay, in equal shares, all taxes and assessments on the said property, and also all costs and charges for keeping the implements of husbandry on the farm in good order; and that each should supply one half of the seed necessary for the cultivation of the said farm from year to year. To the fulfilment of all of the above conditions upon the part of the said John, to be performed during the lifetime of the said Curtis, the said John bound himself if he should survive the said Curtis, but it was thereby provided, covenanted and agreed by the respective parties to the said deed, that in case of the death of the said John happening before the death of the said Curtis, the widow or heirs of the said John should not be held to the performance of anything therein contained towards the said Curtis, and that the said tract of land, together with the personal property mentioned in the said schedule, should revert to and become the property of the said Curtis, save and except such buildings as the said John might have erected the said land, which buildings or improvements should belong to the heirs or legal representatives of the said John Martindale. During the year 1868 John Martindale worked the farm under the terms of the above deed, and lived in the dwelling-house upon the farm with his father, who by the deed had reserved to himself during his life certain rooms therein. In the year 1869, and prior to the month of September in that year, John Martindale, together with his wife, moved to a neighbouring lot in an adjoining concession on lot 5, in the 5th range of lots in StanbTidge, which he had purchased from his aunt, a Mrs. Whitman. Upon the 6th of September, 1869, he entered into an agreement with bne Curtis Murray, with the consent of the said Curtis Martindale, testified by the latter being a party to and signing the said agreement by which it was agreed as follows:to Certes Murray, to work and carry on at the halves, for the term of two years, commencing on the 10th day of March, in the year of our Lord 1870, and to continue two years therefrom, unless one of the said parties should be dissatisfied, in which case said Murray is to leave at the end of one year.

Said Martindale agrees Gwynne J. to put on said farm eight cows, but reserves one of said cows for the use of his father, if he requires it, in which case he, the said John Martindale, agrees to pay the said Murray one half the expense of keeping said cow.

Also he agrees to put on five sheep; said Martindale agrees to put on two brood mares, to be used on the farm, with one double wagon and double harness, together with all the necessary implements of husbandry for carrying on the said farm. Said John Martindale agrees to let said Murray have the use, for the first year, of one half of fifty acres of land which he owns on lot No. 5, in the 5th range of lots in Stanbridge, for pasturing two horses and building a portion of the line fence on the said piece of land ; said Martindale reserves a newly stocked piece of meadow in the south field, said meadow supposed to contain three or more acres for his father to mow, for his own use, if he chose to do so.

He reserves also the north part of the horse barn (the part for putting the hay in), to put his hay, and the south part of the stable for his colt ; he reserves the south part of the dwelling-house, known as the old part, for his father.

Said John Martindale and Murray are each to have two yearling heifers pastured on the farm the first summer, and if said Murray keeps the farm more than one year the two heifers helonging to Martindale are to be wintered on the farm with the cows if they are with calf, but not otherwise. If the brood mares should have colts the first year they are to belong to Curtis Martindale and John Martindale, but if they should raise colts the second year they are half to belong to Murray and half to Curtis Martindale.

Each of the said parties to furnish one half of the seed sown or planted on the said farm, together with one half of the salt for the stock and dairy, and one half of the butter tubs. Said Murray is to put on one cow for his family use, which is to be pastured on the farm, but not wintered.

Said Murray agrees to carry on said farm in a good husbandlike manner, and to deliver to Curtis Martindale one equal half of all crops grown and harvested on said farm by measure or weight, together with one half of the butter, pork, and all other products of the farm and dairy. It is agreed between the said parties if the said farm does not produce sufficient hay to winter the stock of the farm, that Curtis Martindale shall reduce the stock by selling such stock as he may think proper.

Said Murray agrees that at whatever time he leaves said farm he will leave the buildings and all tools of the farm in as good condition as he finds them, save and except the natural wear of said pro- Each of the said parties John Martindale, Curtis Martindale and Murray signed that agreement. Now it is to be observed that this agreement does not divest John Martindale of the estate in the lot vested in him by the deed of September, 1867.

The agreement of September, 1869, only modifies the provisions of the former agreement as to the personal working of the farm by John Martindale authorizing him to substitute Murray in his place for the limited period and to the extent and upon the terms prescribed in the agreement without in any manner prejudicing John Martindale's title and rights under the deed of September, 1867. It might be that before the 10th of March, 1870, John Martindale and Murray might mutually agree to put an end to their agreement, in which case equally as after the expiration of the two years or one year, as the case may be, as mentioned in the agreement, John Martindale's liability to Curtis for the working of the farm under the deed of September, 1867, would continue in full force.

In the interval between the 6th- September, 1869, and 10th March, 1870, the only clause of the agreement of the 6th September, 1869, in actual operation was the last whereby Murray agreed to move on to the farm on the 20th September, for the purposes in that clause mentioned, and his possession under that clause until the 10th March, 1870, would be only in right of, and as the servant or substitute of, John Martindale in whom the estate in the property was still vested by the deed of September, 1867.

Now in this state of things the instiument of the 11th Decem- MZ'-,. ber, 1869, by and between John and Curtis Martindale was executed, and thereby after reciting the deed of V,.

donation of September, 1867, and the terms therein con- Gwynne j. tained upon which John Martindale had bound and obliged himself to till and cultivate the farm during the life of Curtis, and after reciting further that, The said Curtis Martindale.hath proposed and offered unto the said John Martindale to occupy and cultivate the said tract of land and to take management of the stock belonging to the same with the horses that are mentioned in the said schedule (annexed to the deed of donation) and that said John should pay unto the said Curtis Martindale yearly, and every year so long as he the said Curtis Martindale Shall live, the sum of $200 per annum, in lieu of all support and maintenance as well as payment of taxes and all other obligations expressed to be done and performed by the said John Martindale towards the said Curtis Martindale, in and by the said foregoing deed of donation : And in case the said John Martindale should at any time hereafter be called upon to cultivate the said tract of land and farm mentioned in the said foregoing deed of donation, the said Curtis Martindale doth hereby agree to feed the cows and horses reserved in the said foregoing deed of donation out of the undivided crops raised upon the said farm, and that the said John Martindale be exonerated from the care of the said cows and horses, in case he may at any time hereafter be called upon to resume the cultivation of the said tract of land and farm mentioned and described in the said foregoing deed of donation.

To all which the said John Martindale did thereby consent and agree to accept the said conditions. It was witnessed that the said John Martindale did thereby promise and oblige himself to pay unto the said Curtis Martindale, for and during his natural life, the sum of $200 per annum for each and every year in lieu of support and maintenance as mentioned in the foregoing deed of donation, and that the first such annual payments should become due at the expiration of one year from the day 'of the date thereof, and from thence annually during the natural life of the said Curtis Martindale, any thing in the said foregoing deed of donation contained to the contrary in anywise notwithstanding. The deed also contained the following MAmclause

There can I think be no possible doubt that the lot here intended to be mortgaged is the lot conveyed to John Martindale by the said deed of donation and that the word " west " half was inserted by inadvertence for the word " south " half. The west half would be composed of the north-west and south-west quarters which latter John was possessed as part of the south half conveyed to him by the deed of donation; to the north-west quarter he had no title, and it is obvious that he intended to mortgage half of lot 4, in the 4th range, which therefore must be the south half to which alone he had title. Now in relation to this instrument it is to be observed that it does not divest John Martindale of the estate in the farm vested in him by the deed of donation.

It merely suspends and modifies certain of the conditions and obligations imposed by that deed upon John in connection with his tilling and cultivating the farm and taking care of the live stock, It does not profess to annul these obligations wholly, but merely to suspend and modify them, for the instrument expressly contemplates that John might at some future period be required to resume those obligations, in which event certain modifications are agreed upon, and it provides for the annual payment by John to Curtis of $200 in lieu of and substitution for the maintenance and support in sickness and in health, which, by the deed of donation John was obliged to render to his father over and above his share in the crops raised upon the farm and in the produce and increase of the live stock, &c.

John's right to erect buildings and to make improvements upon the farm is unaffected, in fact his legal estate as the proprietor of the farm is untouched, save in this that j. Curtis accepts from John a mortgage upon the farm in security for the payment by John to Curtis during his life of the said annuity of $200.

Upon the same 11th December, 1869, but after the execution of the above instrument of that date, the marriage contract under consideration was prepared by and dxecuted before the same notary who had prepared the above instrument of that date between John and Curtis Martindale and the said deed donation.

The clause in the marriage contract under which the question in this case arises is as follows:- The contention of the respondent is that the land mentioned in the deed of donation cannot be the farm mentioned in the clause of exception and reservation in the marriage contract, upon the suggestion that it was not then "in the occupancy of John Martindale," and so did not conform to the description of the farm mentioned in the marriage contract-that the lot which John was in possession of and living on in the 5th range was the only one in his occupancy, and that it alone answered the description of the farm in the marriage contract; that this must be regarded as the farm intended in the exception and reservation in the marriage contract, or that the exception and reservation must be void for uncertainty. If we should hold that the lot of land in the 5th range, which John had pur- J. chased from his aunt, Mrs. Whitman, was the lot of land or farm which, by the marriage contract, was excepted and reserved from the operation thereof, we must construe the exception as being of property in which Curtis Martindale had then no interest whatever, nor, so far as appears, any contemplation of acquiring, or that he might acquire an interest therein at any future period.

So construed, the exception and reservation of that lot would be utterly senseless.

It is not possible, therefore, to construe the language used as referring to that piece of land, and as the evidence shows that Curtis had no interest in any land other than that which he had in the south half of lot no. 4, in the 4th range, in virtue of the instruments of the 1st September, 1867, and the 6th September and 11th December, 1869, which latter was executed immediately before the execution of the marriage contract, the exception must be absolutely void unless it can apply to that lot of land. The question, therefore, simply is :- Is the description given of the farm intended under the words " now in the occupancy of John Martindale " so inapplicable to the south half of the said lot no. 4 that it cannot apply to the only farm to which it could reasonably apply?

And, in my opinion, it clearly is not, for upon the 11th day of December, 1869, when the marriage contract was executed, it is clear that John was the proprietor of the said south half lot, subject to the mortgage thereon which upon that day he executed in favour of Curtis in security for the annuity $200 thereby made payable to Curtis during his life, and the I ossession which Murray then had of the farm under the agreement of the 6th September, 1869, beingunder John, and for John, and as his substitute, with the consent of Curtis, to fulfil the stipulations and obligations which had been incurred by John in the j. deed of donation, the draughtsman of the marriage contract, with perfect propriety, might refer to the farm as then in the occupancy of John, who was the proprietor of the land in title, and in occupation of it through his servant and substitute, Murray.

I am of opinion, therefore, that there can be no doubt that the farm referred to in the marriage contract as excepted and reserved from the operation thereof is the farm mentioned in the deed of donation, which was not at all inaccurately referred to as being, on the 11th December, 1869, in the occupancy of John. Neither can there be, in my opinion, any doubt that the land so designated must still be held to be excepted and reserved from the operation of the marriage contract.

At the time of the execution of that contract Curtis Martindale could only have acquired the legal estate in and title to that piece -of land by one or other of three ways, namely:-1st. By foreclosure of the mortgage for non-payment of the .$200 per annum, in security for which' it was executed; or, 2nd. by surviving John; or, 3rd. by resiliation of the deed of donation by mutual agreement, which is the mode by which Curtis Martindale, in December, 1870, did become seized of the land. Now, there is nothing in the marriage contract qualifying the mode by which Curtis should acquire title to the farm in order that it should be excepted from the operation of the marriage contract; and it cannot be maintained as a proposition of law that the exception was only to prevail in the event of Curtis acquiring title by survivorship.

What is excepted is the farm itself if Curtis should be seized of it at the time of his death, regardless of the mode by which Curtis might acquire title to it. The fact that by the deed of resiliation Curtis covenanted to pay John $900 for improvements cannot operate to prevent the exception having effect in accordance with its terms.

That sum would seem to be payable to John's estate if the title of Curtis J. had accrued by survivorship. But however that may be, effect must be given to the exception and reservation of the farm from the operation of the marriage contract under the circumstances in which the title of Curtis thereto has accrued equally as if his title had accrued by foreclosure of the mortgage or by his. surviving John.

In all other respects I concur in the judgment the Court of Queen's Bench at Montreal, as delivered by the learned Chief Justice of that court. This appeal must, therefore, in my opinion, be allowed with costs, and the judgment of the Superior Court restored. As to the evidence of Mr. Rice to the effect that- Besides that this evidence was inadmissible, Mr. Rice would seem to have been labouring under a misconception of the conversation which he said had taken place eighteen years previously, for it is plain that Curtis had not taken back the farm from his son on the morning of the day on which the marriage contract was made, but that, on the contrary, he had only suspended and modified the stipulations and conditions in the deed of donation as to John's tilling and cultivating the farm, and had accepted a mortgage on the farm executed by John to secure the

$200 per annum. thereby agreed to be paid to Curtis in lieu of and substitution for maintenance. It was not until the month, of September, 1870, when the deed of resiliation was MAIexecuted, that Curtis took back the farm. These observations, however, have no bearing on the case, except in answer to an imputation of bad faith in Curtis j. in his having, while professing to intend to give the defendant security upon the farm as a marriage portion, in point of fact excepted and reserved that farm from the operation of the contract.

concurred with Fournier J.

Martin.