Toronto (City) v. Jarvis

The municipality made the drain accordingly.

In 1879 John Severn sold the land to his son George John Severn died in February, 1880. The sale to George Severn was completed before the death of John Severn. The deed by which the property was conveyed to George Severn was not put in evidence, and it does not very clearly appear whether it was executed by John Severn himself, or by those who took under his will. The parol evidence of George Severn, given on cross-examination by the appellant, is that the sale to him was carried out about the 28th of January, and that his father died on the 8th of February, By this understand that there was a conveyance to him on the first mentioned date.

It does not appear to have been disputed that this conveyance was JRIS. registerel ; the title is spoken of in the judgment of the'Court of Appeal as a. registered title, and the only question as regards the registry laws seems to have been whether the interest of the municipality was an interest to which the registry laws applied, and I find it nowhere suggested that if it was there had not been such registration of the deeds as to bring the case within the operation of those laws.

George Severn, having acquired title as before mentioned, made certain mortgages. Under a power of sale contained in some of these mortgages the late Sheriff Jarvis, the father of the respondent, became a purchaser of the property for valuable consideration.

Subsequently the land became vested in the respondent under a conveyance from the trustees of his father's will. These mortgages and the deed to the respondent were all duly registered.

The city authorities having entered and performed certain works in connection with the drain the respondent brought the present action to recover damages for trespasses committed in so entering also damages for maintaining the drain.

The appellant pleaded the agreement with John The respondent replied that he and those under whom he claimed were purchasers for value and set up the registry laws.

The agreement by John Severn with the municipality of Yorkville, under which the drain was constructed, was proved beyond doubt. It was, however, also established that there was no by-law of the Yorkville council authorizing the taking of the land for the drain. Further, it was established by the evidence of ~

George Severn himself, that he had direct notice of the agreement between his father and the municipality before he purchased.

Upon this state of facts Chief Justice Armour and the Court of Appeal have successively held that the respondent is entitled to recover. Their judgmints both proceed upon the ground that the respondent is entitled to the benefit of the registry laws.

It is not necessary that we should define with exactitude the nature of the interest in the land taken by the municipality under the agreement with John Whether that agreement is to be taken as conferring the property in the land required and taken for the purposes of the drain, or whether it is to be considered as conferring a quasi easement for that purpose, or was a mere license, can make no difference. In either case it was an interest in land to which the registry laws apply.

If it was the intention to give a title to the property in the land or an easement, it matters not which, then the agreement must be deemed to have been a contract for an interest in land partly performed, one which, being for the valuable consideration involved in the expenditure on the drain, a court of equity would have decreed specific performance of. If it was a mere license it would have been revocable at first, but if not countermanded before money had been expended in the execution of the purpose for which it was conferred it would have by that expenditure become irrevocable, and therefore an interest in land.

Plimmer v. Mayor of Wellington

Under the original registry law equitable interests not created in writing, and therefore not susceptible of registration by memorial according to the machinery provided by the act, were held not to be within th3 registry laws. and so not liable to be defeated by the registration of a subsequent grantee for value from the same grantor.

A familiar example of this principle was afforded by the case of a mortgage by deposit of the title deeds. If, however, there was a writing which might have been registered it was subject to be avoided by subsequent registration, although a mere equitable title might have been conferred by it. It is not, therefore, accurate, at least under the old law, to confound equitable interests with interests not conferred by a written title, and for that reason not capable of registration.

By the Revised Statutes of 1877, 114, s. 83, it was, however, enacted that:

This provision is clearly not restricted to interests derived under written instruments susceptible of registration, but it applies to all interests, including equitable mortgages, vendor's liens, parol contracts partly performed, and interests having their origin in verbal agreements such as the present, if it is to be viewed a right to maintain the drain under an irrevocable license.

I can see no ground for confining the operation this clause to interests in land derived under some written title.

The consequence is that the respondent's registered title must prevail against the interest of the appellant derived under the parol agreement with John Severn, unless something has occurred to disentitle him to the benefit of this eighty-third section.

It is true that G-eorge Severn had notice which would have disentitled him to set up priority obtained by registration. This, however, was a mere personal dis- 'i"~ qualification and cannot affect those claiming under him through a registered chain of title as purchasers for value having no notice. Within this last descrip- J tion the respondent is clearly included.

Then it is not immaterial to notice a peculiarity in the wording of the 83rd section which does not make it essential that the registered instrument should have been executed by the grantor who conferred the unregistered interest, or even by his heirs, but gives priority even where the registered deed has been executed by the "assigns" of the party who conferred the prior unregistered interest.

The case of Ross v. Hunter (1) has, in my opinion, no application. That was a very plain case since the grantee, who had in that case omitted to register, claimed under a deed which could have been put the registry in the ordinary manner.

The appellant also insisted on the Municipal Act applicable at the date of the agreement with John Severn in 1877. That act was the Municipal Act of 1873, cap. 48.

By sec. 372 subsec. 10, it was enacted that- It was argued that such a by-law did not require registration and that the case was therefore altogether outside the registry laws.

If there had been a by-law authorizing the taking of this land I should have agreed in this proposition. There was, however, no by-law and for that reason there was no expropriation under the statute. Had there been a by-law a certain publicity would have been given to the title of the municipality to the land taken up by the sewer, which is entirely lacking in the absence of such an ordinance. I cannot, therefore, agree with the appellant's contention that we are to ascribe the appellant's title to the Municipal Act, treating the by-law as having been waived, and therefore to hold the interest as one conferred by a title paramount to the registry laws.

I entirely agree with what is said on this point-by Mr. Justice Osler in delivering the judgment of the Court of Appeal.

It is objected to the judgment which was entered by the learned Chief Justice of the Queen's Bench that it was too large, since, as it was contended, it would entitle the respondent to recover damages not only in respect of his own time but also for damages accrued in the time of his predecessors in title. This objection is wholly unfounded.

Any damages which accrued prior to the respondent's acquisition of title cannot be said to belong to him. Then the terms of the judgment in directing a reference are that it be referred to the referee- This clearly confines the reference to an inquiry in respect of damages accrued in the plaintiff's own time. The appeal is dismissed with costs.

Appeal dismissed with costs.