Majority
ance with 43 Vict. ch. 14 to hold that the word " heirs" as used in these wills meant the statutory heirs and not WOL~F the common law heirs. That statute gives a legislative interpretation of the word " heirs " which the statute - 14 & 15 Vict. ch. 6 did not do or purport to do. Gwynne J. The appeal must be dismissed with costs.
Judgment of the Court
JUSTICE.-This case came before this court on an appeal which is reported in the 26th volume of the Supreme Court reports (7).
The judgment there given contains a full statement of the facts and of the questions arising between the parties in that action which related to the construction of the deed of the 20th of April, 1891, there stated, and referred to a reservation in favour of the present appellants contained in a preceding executory agreement of the 6th of April, the question being whether that reservation was to be considered as still in force or was to be treated as having been superseded by the later deed.
In that action as is observed in the judgment no case for rectification of the deed was made.
The present action has been brought for the purpose of having the deed in question reformed by the insertion of the reservation referred to.
The cause was tried before the Chief Justice of the Queen's Bench
Division who gave judgment for the appellants directing the rectification asked for.
On appeal this judgment was reversed by a majority of the Court
Appeal (Osler and Maclennan JJ.), the Chief Justice dissenting. This latter judgment proceeded upon two grounds; first, the question was considered to be res judicata having, as it was held, been concluded by the judgment in the former action; secondly, it was considered that no notice of the error had been brought home to the respondents, The Provincial Natural
& Fuel Co. of Ontario, and that that company were therefore bond fide purchasers for value without notice.
No case for rectification having been made by the first action, as was there most distinctly held, it is impossible upon any recognised principle applicable to the defence of res judicata to hold that such an answer to the action can be maintained.
I need not go fully into that question as we all agree entirely in the judgment of the Chief Justice of Ontario on that head.
It is not material to say that the appellants might, if they had so elected, have made an alternative case for relief on the ground of mistake in their first action; it is sufficient to say that they did not in fact do so and that no such question was there in issue. Upon the second point, that of notice, we agree with what is said in the judgments delivered by both the learned Chief Justices who decided in the appellants' The favour, and we adopt in their entirety the observa- Justice.
tions on that part of the case made in the dissenting judgment delivered in the Court of Appeal.
As to the right to recover damages in an action for rectification, I see no objection to it. It was formerly held that a party could not have a decree for specific performance in the suit for rectification, that is specific performance of the agreement as altered by the decree, but no sound reason was ever given for this doctrine and it is no longer law.
Olley v. Fisher
The appeal must be allowed, the judgment of the Court of Appeal vacated and that of Chief Justice Armour restored with costs to the appellants in all the courts.
Appeal allowed with costs.