Judgment of the Court
THE JUSTICE.-I am of opinion that the judgment of the Court of Appeal in this case was entirely right.
The respondent, Louisa Boulton, was the owner in her own right of forty acres of land part of the north half of lot 14, in the 7th concession of Sydney. This is the common case of both parties.
This property was subject to a mortgage to the Messrs. Biggar. On the 25th of September, 1891, the respondent in compliance with the earnest entreaties of her husband George A. Boulton, conveyed the equity of redemption in this land to the appellant Paul Boulton, a brother of the respondent's husband, in order to carry out an agreement of the same date entered into between George A. Boulton and Paul Boulton which had for its principal object the settlement of a debt due from the former to the latter. It is established by evidence of the most satisfactory kind that the respondent by way of valuable consideration for thus parting with her land stipulated with her husband that he was to transfer to her certain chattel property consisting principally of farm stock and other personal property then upon the farm, and also for indemnity against her personal liability on the mortgage held by the Biggars. It is also clear that George Boulton expressly refused when pressed to do so to assign this chattel property to his brother Paul as part of the arrangement for a settlement of the debt.
In pursuance of the agreement under which the erspondent conveyed her equity of redemption, George A. Boulton made a bill of sale of the goods in question to the respondent on the same day as that on which so the agreement with Paul was executed.
The princi- Che pal question in the cause was as to the bona fides of Tmste.
this assignment.
The goods in question having been afterwards seized by the sheriff and interpleader proceedings having been taken, it was asserted that the bill of sale to the respondent was in fraud of Paul. The agreement, although it recited that George was the owner of these goods, gave Paul no security upon them or rights in them and the respondent was not a party to the agreement.
This recital (as a majority of the Court of Appeal have held) manifestly worked no estoppel as regards the respondent and was in fact true. There was moreover nothing in the recital of this fact, and more especially in view of the refusal already mentioned of George to give his brother any security on the goods, to estop George himself from dealing with them in the way he did, namely, by assigning them to his wife as part of the consideration for the conveyance by her of the land to Paul; indeed he could not honestly have refused to carry out his agreement to do so.
Under this state of facts it would be impossible as it seems to me to hold that the bill of sale was fraudulent, and so to take away from the respondent the principal consideration she got for her land.
I think the transaction an honest one and that it has been properly upheld by the Court of Appeal.
The only other question is as to the agreement o indemnify the respondent against personal liability under the covenant in the Biggar mortgage. This was, in addition to the chattels, part of the consideration which the respondent had stipulated for in the conveyance of her land.