Majority
In respect of lands subject to the operation of the "Real Property Act," R.S.M., mortgagees have no registered interest, but merely obtain powers of disposing thereof; these powers do not vest as incidental to the estate mortgaged, but are efficacious only by virtue of the statute.
Where the mortgage stipulates for a power of sale, on default, without notice, and contains no proviso dispensing with the official supervision required by the statute, a sale the mortgagee, purporting to made under that power, without compliance with the requirements section of the Act or an order of the court, cannot operate to extinguish the registered title of the mortgagor.
Judgment appealed from Man. R. 522) affirmed, Idington and Anglin JJ. dissenting.
Per Davies, Duff and Brodeur JJ., affirming the judgment appealed from Man. R. 522).-The registered title of mortgagors in lands subject to the operation of the "Real Property Act," R.S.M., and of persons claiming through them, are protected the provisions of the 75th section of that statute denying the acquisition of title adverse to or in derogation that the registered owner of such lands length of possession only; the limitation provided by section 20 of the "Real Property Limitation Act," R.S.M., ch. in favour of mortgagees, has no application to lands after they have brought under the "Real Property Act."
*PRESENT:-Davies, Idington, Duff, Anglin and Brodeur JJ. for Manitoba(1), reversing the judgment of Metcalfe J., at the trial and dismissing the plaintiff's action with costs.
The case is stated in the judgments now reported. J. B. Coyne, for the appellant.
P. Wilson K.C. and A. C. Galt K.C. for the respondents.
J. agreed with Duff J.
J. (dissenting).-In December, 1892, one Beattie mortgaged land in Manitoba to mortgagees whose assignees, exercising a power of sale therein, on default, sold the lands to appellant by a written agreement dated on the 10th of June, 1901, and followed that by a deed of 24th November, 1908, which purported to transfer said lands pursuant to said sale to appellant.
The mortgagees had taken possession some six years before the said sale. Prior to all these transactions the land had been brought under the "Torrens System" of registration, and so continued. The registrar refused to register the above mentioned deed of transfer on the ground that the steps required by the "Real Property Act," R.S.M. 1902, ch. 148, as amended, for selling under mortgage, had not been taken.
The issue is thus broadly raised that mortgagor and mortgagee of land brought under said system cannot usefully contract with each other for any power of sale.
NATIONAL
With great respect, such is the logical result of the CO. reasoning proceeded on by the learned Chief Justice Idington J. and Mr. Justice Perdue in the Court of Appeal, the former pointing to the question of possession which he seems to hold cannot be contracted for but must depend on the terms of the Act, and the latter, that, as the instrument in question is under the Act, failure to comply with -the mode of sale provided thereby is fatal to the sale now in question.
Counsel for respondents properly accepts this as the result for which he argues.
Mr. Justice Richards, if I understand him aright, does not go so far, but rather relies on the construction he gives the power of sale here in question. The power of sale relied upon here is as follows:- It is also covenanted between me and the said mortgagees that if I shall make default in payment of the said principal sum and interest thereon, or any part -thereof at any of the before appointed times then the said mortgagees shall have the right and power and I do hereby covenant with the said mortgagees for such purpose and do grant to the said mortgagees full license and authority for such purpose when and often as in their discretion they shall think to enter into possession either themselves or their agent, of the said lands, and to collect the rents and profits thereof, or to make any demise or lease of the said lands, or any part thereof for such terms, periods, and at such rent as they shall think proper, or to sell the said lands and such entry, demise or lease shall operate as a termination the tenancy hereinbefore mentioned without any notice being required, and that the power sale herein embodied and contained may exercised either before or after and subject to such demise or lease.
Provided that any sale made under the powers herein may be for cash or upon credit or partly for cash and partly credit and that the said mortgagees may vary or rescind any contract for sale made or entered into virtue hereof."
By a preceding clause the mortgagor had attorned to the mortgagee.
If we bear in mind that the main purpose of the exemplars of this Act was, if at all possible, to relegate forever to the juristic lumber-room so many conceptions that had long dominated the ordinary mind of the lawyer as to frustrate the execution of the purposes of men in their dealings with each other, we will J. be better able to understand and apply the Act and give effect to it in its proper sphere.
That sphere is not to limit the powers of contracting in relation to real estate. It is, in the language of the recital, the earliest one, the "Land Registry
Act," 1862,
And this is the key-note of all like legislation. But it by no means covers the registration of all such contracts.
What we have first to do is throw away some preconceived notions of what a mortgage must be, and
-apply the common sense of the ordinary man knowing none of these things, but knowing that a mortgage is as section 100 of the Act seeks to constitute it and section 1 interprets it.
Section 100 reads as follows:- Then the interpretation section 2, sub-section (d)
is as follows:- Again let us look at the definition of "mortgagor"
in same section, sub-section (f) :- The preceding sub-section interprets "mortgagee" to mean "the owner of a mortgage registered under this Act."
A good deal has been said in argument here, as Idingn J. well as in text-books, to raise puzzling questions which the above quoted sections give rise to. Most of them are beside the questions we have to resolve.
The mortgagees were, in this case, given their power of sale by the very instrument of mortgage registered and, notwithstanding the length at which I will, out of respect to the argument put forward, deal with this case, I have never had but one opinion relative to this phase of the matter. It is this, that the registration was not only a registration of the charge of the statutory character defined by the sections I quote, but of that charge coupled with this power, and this latter became of the very essence of the transaction, duly recognized by the officers on whom was cast, by section 83 of the Act, the duty to pass upon and if need be reject what is not within the provisions of the Act, and also became part and parcel of that claim which the mortgagees tendered and had irrevocably placed on record and is, for that reason, a part of that to which the mortgagee thereof acquired an indefeasible title.
I have never been able to see, notwithstanding the argument well presented, how it could be cut down to mean something else than the plain language * imports.
It was a power to sell. To sell what ? I answer, all the interest the mortgagor had in these lands; nothing less, nothing more. And once thus properly sold and conveyed by virtue of ordinary common law principles being applied, as well as the recognition there- ' of given by the Act, the title of the mortgagor disappeared and became rightfully that of the appellant.
sIrII An estate in fee simple being what the mortgagor had, and the mortgagee was given power to sell, passed thereby as effectually as if the mortgagor had executed the deed himself.
The mortgage as registered being a charge and power, there cannot be any difficulty, to my mind, any more than if the power had been (what it is not)
a simple power of attorney authorizing a sale and the execution of a conveyance in the name of the mortgagor as vendor. Indeed, a learned writer suggests this latter method as a means of overcoming another difficulty he sees in one of the English Acts of a similar character.
The conclusion to which I have referred, that no power of sale can be contracted for, finds no countenance in the grammatical language of the Act.
There is not a line therein that specifically prohibits an "owner" or a "registered owner" from conveying and contracting relative to his land as he may see fit or to render null such conveyances or contracts as he may have made.
The language of section 115 at first blush might suggest that the duty of the officers under the Act is absolutely to ignore any proceedings of foreclosure or sale unless the mortgagee had filed a certificate lis pen dens or notice in the land titles office.
Counsel did not seem to rely on this.
I think him well advised in that regard. It is only intended to relieve the officers from being bound to take notice of such proceedings as they may progress elsewhere.
That is an entirely different thing from dealing with the title the proceedings when completed may result in vesting in the mortgagee, or those claiming under him; when so completed as to shew that the registered title has passed from the registered owner . to the mortgagee or purchaser from him, executing a power of sale, and no other conveyance of interest notice thereof, or of other claim has intervened, the registrar is as much bound to take it up and record it as if presented with a direct conveyance given in the Act to transfer from owner to purchaser. And much less does there appear any prohibition against the resort to statutory or other powers to transfer title. The mortgagee proceeding outside the Act, as Cozens-Hardy L.J. puts the matter in another aspect of the "Land Transfer Act, 1897," section 20, in the case of The -Capital and Counties Bank v. Rhodes (1), at page 656 at foot, and top of page 657, may be unwise in running the risk of some intervention instead of proceeding under the Act, and the Act may thus furnish a sort of indirect compulsion to use the Act's provisions.
A new statutory remedy never takes away the old unless the new is given in substitution of the old henceforth prohibits either expressly or by necessary implication those concerned from resorting to the old mode of relief.
The new Act may by its scope and provisions demonstrate such an inconsistency between the old and the new as to lead to the conclusion that the old remedy has been abrogated.
I infer from the scope and purpose as well as the terms of this Act that there can be no such necessary conflict or inconsistency between the rights and remedies existent before the Act and its enactments as to drive us to the conclusion that this Act must be accepted not only as a registry Act designed to protect purchasers, but as one designed to limit the powers of contract in relation to interests in, or power over, real estate.
The Act itself by its very terms in section 70, subsection (j), and section 126, demonstrates that this latter purpose was not within its purview.
Section 70 excludes specifically those numerous subjects of claim named, and as to sub-section (j) clearly anticipates future caveats, and on what can such caveats rest ?
I answer on any legal or equitable right enforceable against him getting the certificate.
Again section 126 is as follows:- The sale in this case was made but only took its effective form by a conveyance some two years after the Act had stood amended as quoted.
It is, therefore, to be tested by the Act as amended in latter part of the section.
How can it be said in face thereof that it is not competent for the court to declare the rights of these parties and that declaration bind the registrar to register ?
Again let us look at the language of the section 108, which expressly declares the first mortgagee What does it mean by "rights and remedies at law and in equity" if the usual remedy of executing a power of sale or of foreclosure, for example, be not respectively such ?
If it had used less comprehensive language we might have supposed or imagined from the resemblance the form of security given by the statute bears to a hypothee in civil law, it is to be implied that some judicial proceeding to enforce it must be resorted to as required under that system law as usually developed in modern times.
To simplify and clarify the register is the purpose of this form of mortgage and to supplement that record by this and other sections of the statute and thus give efficiency and practical utility thereto, is the plan or scheme provided.
Then section 109, which is the basis of the procedure given by the Act for sale or foreclosure, is as clearly permissive as can be.
Counsel cited as authority to shew that "may" in certain cases imposing a duty on a public officer to act, must be read in an imperative sense.
But there is no duty cast by this section on the officer.
It is merely a permissive step for the mortgagee to take as preliminary to and laying the foundation for the proceedings in the subsequent sections where "may" is possible of the construction claimed. But the initial step, the right of election, lies in the mortgagee alone to invoke these powers of the later sections and is entirely permissive.
If the draftsman had any such notions as are now claimed to have governed him, he erred in thus beginning.
This is a mortgage where if the power is good no notice was required. We are, therefore, not concerned with the case, respecting which I express no opinion, of power conditional on a notice to be given and which once given it may be argued is imperatively required to be filed in the land office.
The power of sale herein is one that does not require notice.
I am not concerned with the bearing of the expression "without notice" in this power, for if notice is not required by the terms of a bare power it becomes operative on the events happening that are stipulated for as preliminary to its execution.
I am unable to reconcile the proviso at the end of section 110 with the contention set up that there cannot be a power of sale included in a registered mort- Again the form of mortgage given by this Act leaves a space for covenants such as parties may agree upon and I would suppose it was intended to enable the parties to insert their agreed on terms and conditions of any kind not clearly inconsistent with the Not only does the Act fail to furnish ground for holding its provisions prohibitive of or inconsistent with the existence of a contractual power of sale, but the history of the law in regard to concurrent remedies for sale in the case of mortgages demonstrates them as existent both outside of such Acts as this and in harmony with the workings of such Acts.
Though foreclosure of mortgages by the court had existed for centuries, it was not until 1852, when by 15 & 16 Vict. ch. 86, sec. 48, an almost universal power of sale to enforce mortgages was conferred .upon the court.
The power had, as the result of the settled jurisprudence of that court, been before that enactment confined to a limited number of specific instances which are set forth by Story in paragraph 1026, page 207 (8 ed.), of his work on Equity Jurisprudence.
The court had half a century or more preceding this enactment reluctantly recognized as settled law that a power of sale might be agreed upon by the parties to the mortgage, and inserted therein, and when exercised honestly and in conformity with the terms of the power, the court could not interfere. The arguments presented to us now as to clogging thereby the right of redemption and ousting or discarding the sacred powers and jurisdiction of that court, were, no doubt, ably presented and weighed for a long time before such an innovation could be conceded as possible.
The conferring by statute upon the court the ample powers of sale I have adverted to, never seems to have been so thought of by any one as to constitute that a substitution for the contractual power of sale so long recognized.
Yet I venture to think it might as logically have been contended for as is the position taken here.
'The "Cranworth Act," 23 & 24 Vict. ch. 145, sec. 11, as to trustees and mortgagees, some nine years later enabled the person to whom money secured or charged by a deed (as in the given terms is specified) was payable or his executors or administrators to sell. Has any one ever conceived the idea that this new statutory power was so inconsistent with the powers .of sale given the Court of Chancery as above or the usual contractual powers of sale that one or the other of these powers were superseded ?
This Act formed part of the law of England presumably introduced into Manitoba by, if not previous to, the declaratory Act of its own legislature, 38 Vict. ch. which directs
The terms of the "Cranworth Act" exclude the application of its powers from having any direct bearing on this case; but is it not in force in Manitoba ? Can there be a doubt of its having been introduced before and in force when the "Torrens System" was introduced ? Did any one ever suppose it was (if so introduced) in conflict with the then existing powers of the provincial courts or contractual powers as to affect them ?
And can the "Real Property Act," passed later be held to be so inconsistent with it as to repeal it ?
Then we have in England the first indefeasible registration Act, 25 & 26 Vict. chs. 53-59, called by some as I have above, "The Land Registry Act, 1862," brought forward by Lord Westbury and so named hereafter as his Act.
Some lands were brought under that system and the registered owner thereof mortgaged them and later gave two subsequent mortgages.
On default the first mortgagee acting upon the power given by the "Cranworth Act," which was the earlier Act, sold and his purchaser applied for registration as appellant did here, and was refused. Thereupon he appealed, and the appeal having been heard by Lord Romilly 31.R., he directed registration.
See In re Richardson(l).
The registrar submitted but would not put the record so as to cut out the subsequent mortgages because of the restricted terms of the order, and again Lord Romilly was applied to(1), and he amended the order so that the purchaser got the indefeasible title the mortgagor had when he gave the first mort- The same learned judge in Re Winter(2), made an order resting upon similar views of that Act. These cases are all instructive and the Richardson ones especially so when we consider the fact that Lord Romilly was two years before the first decision chairman of a royal commission to consider the "Westbury The two first named cases are not very fully reported.
We have to rely on the statement of counsel for the source or character of the power there in question. The mortgage seems clearly to have been conformable to the Act, but the power was exercised by virtue of the "Cranworth Act."
Let it be noticed first that the learned Master of the Rolls states and next shews the existing subsequent mortgages on the register. He then points out that the purchaser has nothing to do with the application of the purchase money, which is the statutory protection given him, as is given by section 111 of the Act here in question. He then proceeds:- Reading this I find much light shed on the peculiar form of mortgage given in the Act here and there Idi-tn which seemed such a puzzle to the court below and on argument here. Its purpose in each case was to create a charge without passing the legal estate and thus relieve from such puzzles.
The "Westbury Act" of 1862 expressly permitted the use either of the statutory form or the old form of a deed to create a mortgage, and hence this cannot be said to be a case decisive of the exact questions here. It is as a practical illustration of how the old and the new can be made to harmonize in a more complicated situation than the "Real Property Act" in question here may produce, that these decisions on that Act are instructive and thus demonstrate that it cannot be maintained there is any such necessary conflict or inconsistency as to drive us to hold that the power to contract for a power of sale has been abrogated and, as argued, can no longer exist. The "Land Transfer Act" of 1875, amended in 1897, is much ampler in its provisions than the Manitoba Act, and has in it many provisions that suggest exclusiveness of contract, yet in the Capital and Counties Bank v. Rhodes(1), at pages 653 to 658, the possibility of working out such an Act is found to be quite consistent with the conveyancing powers outside its provisions being exercised.
It is true section 49 of that Act makes a reservation to remove any doubt on the subject, and hence the judgment in that case cannot govern this case. But like the cases citoed above, it demonstrates how far men may go in dealing with land brought under the Act without resorting to the provisions of the Act and yet no necessity be found for holding them, J. as contended for here, exclusive.
Weymouth v. Davis(1), is another illustration. Here the land was on the register, and the possessory title appeared in a man who executed a charge in the form prescribed by the Act, but to save expense did not register it, but registered a notice of deposit of the certificate; and those things were all done after having taken a mortgage deed. The mortgagee foreclosed the latter, and on getting his final order of foreclosure and for possession, sought, though no reference had been made to the formal charge in such proceedings, to have his order of foreclosure registered, and on refusal of the registrar, an application was made to Swinfen Eady J., who ordered the rectification of the register as desired.
Stevens v. Theatres Limited (2), may be referred to as a case where the question of inconsistency between the exercise of the power of sale and foreclosure proceedings at the same time is discussed. However much the power of the court to interfere may exist yet the power of sale is held not extinguished by any mere inconsistency so as to defeat a purchaser's title under the power of sale.
I may also observe that in some jurisdictions the courts have passed orders to deprive mortgagees pressing all their remedies of ejectment, foreclosure, power of sale and action on the covenant at the same time, and I think statutory enactments exist to put them to their election in such cases.
Such rules of court or statutes rather affirm than controvert the proposition that prind facie they are in law not inconsistent.
In the case of Cruikshank v. Duffli(1), raising the question of the power of an executor enabled to mortgage, to give a power of sale in the mortgage, it was held he could. It was treated by the court then as a necessary. incident of the power. See also Russel
Plaice(2).
The reasoning upon which the judgment in the case of Belize Estate Quilter(3) proceeds, may also be well borne in mind in this connection, as demonstrating that an Act such as the "Real Property
Act" is not to be taken as an exclusive code relative to the rights men acquire in real estate.
Questions were suggested in argument as to a power of sale in an instrument merely charging the property, and suggestions were made as to the mortgagees not having the legal estate.
In the first place without needlessly going here deeply into the question of the legal estate, I may refer the curious to the work of Hogg on Australian Ownership, Part III., ch. 2, sec. 2 thereof.
The ascertainment of where the legal estate may, in any given case, be, under such a system as the
"Real Property Act" creates, is there fully discussed.
I may also, to relieve those troubled about what seems to me vain inaginings relative to the legal estate, again refer to section 108, quoted from above.
I need not dwell upon the subject in the view I take of the power in question here.
The English "Conveyancing Act, 1881," section
21, sub-section 4, provided that the power of sale conferred by that Act may be exercised by any person for the time being entitled to give and receive a discharge for the mortgage money.
Idington J.
It is equally competent, I think, for the contracting parties to provide a like power fully as efficient. In the case of In re Rumney and Smith(1), it was contended the power of sale there in question could be executed by the party entitled to receive the money, but Stirling J. held they could not in that case and referred to the law as follows:- I am asked to hold that the power of sale contained in the mortgage deed is mere security for the debt, and is exercisable in the absence of any contrary intention any person who in equity can. give a receipt for the mortgage money. I am far from saying that that would not a reasonable state of the law, but the question whether it is the present state the law. In carefully drawn mortgages there is usually found a clause enabling any one who in equity can give a receipt for the mortgage debt to exercise the power sale; but no such clause is found in the mortgage before me. In considering this case in appeal, Chitty L.J. says, page 360:- We have now become accustomed virtue improved conveyancing, and by reason the statutes, to power of sale in a mortgage accompanying the debt, that there is a danger of assuming that as part the general law. No doubt the statutes made quite plain, and all the conveyances in years past made it perfectly plain.
I take it there can be no doubt of this and it all comes back to the proper construction of the power of sale herein.
The Act manifestly gives a power of sale which extends to and covers the legal estate or rather whatever estate the mortgagor may have. That is independent of any special power such as this in question. (1) [1897]
The power in question expressly given by the
'92 instrument does not depend on the "Real Property
Act" for its efficiency or execution, but must depend upon the intention of the parties so expressed.
A common law power does not need any technical language to give it force. The question always is whether it can be construed as giving the power. And repeating what I have already said there can be no doubt of the meaning and intent of the parties to this power as to what it was to enable the doing of.
Of course a power to operate by virtue of the "Statute of Uses" or in execution of some trust must, though needing no peculiar language to create it, be so expressed, as to shew its conformity to what such statute or trust may require.
Finding neither warrant in the statute nor in the principle of law applicable thereto for precluding mortgagees from stipulating for a power of sale in or collateral to a mortgage given on land brought under the "Torrens System" and the sale in question duly made under the mortgage in question I need not enter into the inquiry as to the effect of section 75 relative to the bearing of the statutes of limitations invoked in favour of appellant.
This appeal should be allowed with costs throughout.
I may observe that notwithstanding the profuse quotations from the opinions expressed here in disposing of the case of Williams v. Box (1), I fail to see the bearing of that case or what was said therein on this.
That was a case of a mortgagee resorting to this statute to enforce his rights of sale and foreclosure seeking to set up his proceedings, which did not conform to the statute he chose to proceed under, to deprive the mortgagor of his property.
That case involved the examination of the judicial powers in that regard as contained in the Act. case apart from the collateral questions incidentally arising, involves. merely questions of conveyancing. In turning to the report of that case I find it of the illuminating kind which contains neither full statement of fact nor argument, and hence apt to be misleading.
Since writing the foregoing the information has been given the court that section 110 was not in force till after the date of contract of sale, but in my view the fact does not alter though it may emphasize what I have already said.
J.-The action out of which this appeal arises was brought by the appellant against the respondents, the National Trust Company, as the administrator of the estate of one James Beattie, deceased, claiming a declaration that an "estate in fee simple" in certain lands the property in dispute became vested in him by virtue of a certain transfer to him executed by the Canada Permanent Mortgage Corporation. James Beattie was in his lifetime the registered owner of the lands in question which were registered under the "New
System" established and governed by an Act of the Manitoba Legislature originally passed in 1885, and now known as the "Real Property Act." In 1892 the property was mortgaged by Beattie as registered owner in favour of the Freehold Loan and Savings Company, to secure the repayment of a loan, and the mortgage (with all the incidental rights and powers of the mortgagees) was subsequently acquired by the Canada Mortgage Corporation. The transfer by the last mentioned company is said, according to the contention of the appellant, to have effectually transferred to him an estate in fee simple in this property on one of two grounds: 1st, that the company had acquired a title by possession, and 2ndly, that the legal authority to convey such an estate was vested in the company by a certain power of sale which was contained in the mortgage executed by Beattie and which, according to its terms, was exercisable by the mortgagees and their assigns.
As to the first of these grounds I may say at once that section 75 of the "Real Property Act," in my opinion, makes it untenable, and I am quite content to rest that view upon the reasons in support of it which have been given by the learned judges in the Court of Appeal for Manitoba.
The second contention raises questions of considerable importance which have been very ably discussed by counsel, and deserve a more particular examination. These questions turn primarily upon the effect of the legislative provisions which govern the transactions in dispute. It was assumed on the argument that it was only necessary to consider the Act 1900 which was in force at the time of the attempted I think it is immaterial in the result whether we confine our attention to the provisions of that Act or consider also the provisions of the enactments in force in December, 1892, when the mortgage was executed. I shall first discuss the effect of these latter provisions, which are to be found in the "Real Property Act" of 1891 as amended in April, 1892.
The mortgage in question is in the form prescribed by the Act and was admittedly intended to take effect under its provisions. By those provisions a statutory power of sale is an incident of every registered mortwas not disputed on the oral argument before us that the transfer in question cannot be sustained as an exercise of this statutory power; but it was contended that a special agreement contained in the mortgage conferred on the transferors a conventional power of sale exercisable independently of the provisions of the statute. In considering this contention it is necessary to examine the constitution and characteristics of a mortgage under the Act.
By the provisions of the "Real Property Act" the owner of an estate in fee simple in land having applied to register his title under the system established by the Act called the "New System" and having complied with the statutory requirements leading to registration becomes entitled to a certificate called the "Certificate of Title" which declares him to be the owner of an estate in fee simple in the land of which he is the proprietor.
This certificate is bound in a book called the "register," and a duplicate of it is delivered to the owner.
Thenceforward the certificate not only evidences but constitutes the owner's title. Title to the land to which it relates can be affected only as the Act permits, and by an instrument registered as the Act provides.
The purpose of the Act was to simplify and cheapen the transfer and the encumbering of and to give security of title to the owners of lands and interests therein; and, broadly speaking, the scheme devised is that title is acquired by registration in this register which contains the various certificates of title, each of which shews the interest of the registered proprietor and the encumbrances to which it is subject.
The mortgage contemplated and provided for by the Act is a real security which primarily derives its efficacy as a security of that character from the statute itself. Section 99 is explicit, that a registered owner intending to charge or to create a security upon land by way of mortgage (which by the interpretation clause includes "any charge on land created for securing a debt or loan") shall "execute a memorandum of mortgage in the form contained in Schedule D., or to the like effect"; and by section 83 no instrument is to be "effectual
*
* * to render" any land under the "New System" liable as security for the payment of money or against any bont! fide transferee of such land until such instrument be registered in accordance with the Act.
The registered owner can charge his land in such a way as directly to burden the registered title only by the execution and registration of a memorandum in the prescribed form. It is quite clear, moreover, that the registration of a mortgage under the Act is not intended to vest in the mortgagee any registered "interest" in the mortgagor's land as that term is used in the Act.
By section 100 it is declared that and, in 1900, this section was amended by adding the words "of an estate or interest therein."
The amendment only had the effect, however, of making unmistakable the real operation of such a security under the law as it stood before the amendment was passed. That such was the effect of the statute appears readily enough when we compare and contrast the provisions relating to the transfer and registration of any interest less than full ownership and compare them with the provisions relating to the creation and registration of mortgages.
The Act does not, in a word, treat the mortgage authorized by it as an instrument immediately effecting any dismemberment of the mortgagor's registered title.
The operation of the statute is rather this: When a registered owner wishes to charge his registered title as security for a debt, he .is to execute an instrument by which he declares that he "mortgages" his land and that instrument being registered the mortgagee becomes invested with such rights in respect of the possession of the land and its profits and the registered title becomes (for the benefit of the mortgagee) subject to such powers of disposition as the statute expressly or by implication declares. It is in these rights and powers that the virtue of the mortgage as a real security consists; and it is, consequently, to the statute that we must primarily resort to ascertain what are the rights and powers incidental to such a security.
It is argued that the view thus stated is too narrow, and another view is put forward, which is this: that the mortgage authorized by the Act is to be regarded as having annexed to it all the legal incidents which by law belong to a mortgage at common law and as being capable of having annexed to it by contract all the incidents which may by contract be annexed to a mortgage at common law in so far as such incidents are not expressly or by necessary implication excluded. I think in either view the practical result this appeal must be the same; but I must say that it seems to me to be an artificial and unnatural reading of the statute to regard the mortgage contemplated by it as primarily a common law mortgage, and I think that in adopting such a reading one incurs some risk of losing the point of view from which the legislator envisaged the problem to which he was addressing himself. There is much in the Act to indicate an intention on the part of its authors that under the statutory mortgage the powers and rights of the mortgagee should in substance be economically equivalent to those possessed by a mortgagee under a common law mortgage; yet, juridically considered, there is as I have indicated this essential difference between the two instruments, viz.: that at common law the rights and powers of the mortgagee as such in respect of the mortgaged property are rights and powers which are incidental to the legal or equitable estate vested in him as mortgagee while under the statutory instrument the rights and powers of the mortgagee do not and cannot take their efficacy from any such estate because none is vested in him and his rights and powers must consequently rest directly upon the provisions of the statute itself.
This view, of course, does not involve the consequence that the mortgagee's rights are those only which the statute expressly gives him. It is obvious that many things are left to implication; and where, in any particular case, it appears that the rules governing reciprocal rights of the mortgagor and mortgagee under the mortgage contract in relation to the mortgaged property are left to implication then it is a question to be determined upon an examination of the statute as a whole how far the rights of the parties are to be governed by the rules of law which, apart from the statute, are applicable as between mortgagor and mortgagee.
It is to be premised generally that the statute nowhere countenances the idea that a registered owner can, except under the authority of some specific provision of the Act, by instrument inter vivos confer upon another the power to defeat or override his title by transferring a registered title to his property without constituting the donee of the power his agent for that purpose and without transferring any interest to the donee himself.
It is probably needless to repeat what was said upon the argument that at coinmon law an attempt by an owner of the legal estate in fee simple in land to endow, by an instrument inter vivos, a third person having no estate or interest legal or equitable in the land with power to vest an estate of freehold in another must, in the absence of an assurance to uses or a trust express or implied, utterly fail for reasons of the most elementary and obvious character; and there is nothing expressly or impliedly abrogating this general rule. There is nothing in a word to indicate any intention on the part of the legislature to declare or recognize any such general principle as that a licensee under a bare license to sell or convey land registered under the new system, given inter vivos, may validly transfer a title to such land otherwise than as agent of the registered owner. the contrary the Act expressly forbids the registration of any
The provision dealing with the transfer inter vivos generally (sec. 78), authorizes transfer only by the registered owner.
Cases in which it is intended that such a power of disposition should be vested in other than the registered owner in consequence of some act inter vivos seem to have been carefully considered and specially provided for.
All this, of course, has no reference to powers arising out of testamentary instruments. These stand, as everybody knows, upon another footing; and the rules governing the exercise of them have, of course, no relevancy whatever to any question we are concerned with on this appeal. The statute contains express provisions conferring powers on the mortgagee to defeat the mortgagor's title by causing a title to vest in a purchaser through proceedings outside the registry (analogous to proceedings under a conventional power of sale in a common law mortgage) as well as by proceedings in the registry. There is nothing in the Act, however, indicating any intention to recognize the exercise of powers in that behalf by the mortgagee in addition to and independently of those conferred by these statutory provisions.
On the contrary an examination of the legislation in the light of its history seems to shew that the legislature was dealing exhaustively with the powers of the statutory mortgagee to defeat the mortgagor's registered title in the express enactments relating to that subject and that in this respect nothing has been left to implication. I am not for the present considering the effect of an agreement introduced into a statutory mortgage as giving rise to equities between the mortgagee and mortgagor affecting the land in the mortgagor's hands; that I postpone for the present. I wish to examine the legislation with a view to ascertaining whether there is fair ground for an inference that by means of a conventional power introduced into a statutory mortgage, the mortgagee may be endowed with a power of divesting the mortgagor of his registered title by causing a registered title to the mortgaged property to be vested in a purchaser without the intervention of a court of equity and without taking advantage of the machinery expressly provided by the statute for that purpose. The system of title by registration was introduced into Manitoba, as I have mentioned, by an Act of the Manitoba Legislature passed in 1885. The system had then for some years been in force in some of the Australian colonies and on the subject of mortgages the provisions of the Manitoba Act (with one significant exception) appear to be in substance those then in force in Victoria as will be seen by a reference to Mr. Hogg's invaluable book, "The Australian Torrens System."
These provisions of the Victoria statute had been the subject of consideration by the courts in that colony as well as by the Privy Council; it is quite clear that judicial opinion was unanimously in favour of regarding these sections as providing the only means by which the mortgagee could extinguish the mortgagor's title. In the National Bank of Australasia v. The United Hand-in-Hand and Band of Hope Co. (1), at pages 405 and 406, Sir James W. Colville in delivering the judgment of the Judicial Committee, said:- To the same effect is the decision of the Chief Justice of Victoria in Greig v. Watson (1), pronounced in
I think it cannot be presumed that the Manitoba Act was framed in ignorance of these authoritative pronouncements upon the effect of the legislation
J. that province was adopting in a matter so deeply important as the rights of mortgagee in respect of the foreclosure or sale of the mortgaged property.
Yet nothing was introduced into the Act of 1885 to negative such a construction; and the only provision of the
Victoria statute affording by its terms any plausible support to the appellant's view, a provision which afterwards (in 1900) was introduced into the Manitoba Act and which was largely relied on by the appellant in this connection, was left out of the Manitoba
Act of 1885.
The fair inference appears to be that the view of the effect of the Victoria statute expressed by the Privy Council was that which the framers of the Act of 1885 deliberately adopted; and the provisions of the Act as a whole strongly support this conclusion. The form of mortgage prescribed by section 99 contains a direction permitting the introduction of special covenants.
There is no suggestion of conventional powers.
That circumstance is, in my judgment, not without significance.
It is quite true that a power of sale might be expressed in the form of a covenant, but if it is to confer upon the mortgagee the authority to execute an assurance of the mortgaged property and extinguish the mortgagor's title it is in substance much more than a covenant.
provisions of the Act shew that the distinction which lawyers understand between a power to deal with property in such a way as directly and immediately to effect the title to it and a mere personal obligation was not overlooked by the authors of the Act and in the form referred to the word "covenant" appears to be employed in this its usual sense. The Act again permits mortgages only in the specified form (sections 83 and 99), and declares this form to be a part of the Act (sections 3 and 4). If the intention had been to permit the introduction of an agreement authorizing the mortgagee to deal with the 'title in a manner which the Act itself not only does not provide for, but which would appear to do violence to some of its express provisions, I think, in view of these stringent provisions, we might have expected something more explicit than a direction authorizing the introduction "special covenants."
Then there is no provision for the registration of a transfer executed by a mortgagee under such a power. The Act, as I have pointed out, forbids the registrar to
The transfer authorized by section 78 of the Act is a transfer by the registered owner; and such a transfer could not, of course, be executed by a mortgagee, as such. Provision is specially made for the registration of the transfers made by the mortgagees in execution of the express powers of sale vested in them by the Act itself (section 110), but that provision is strictly limited to such transfers.
Provision, moreover,; is expressly made preserving the rights and powers of mortgagees under mortgages existing at the time the land is brought under the "new system."
In face of all this the omission of any provision touching the execution or the registration of transfers by a mortgagee under a statutory mortgage exercising a conventional power of sale appears to be significant. There is a provision of the Act which was introduced as an amendment in 1889 and requires particular notice. It is contained in section 77 of that Act and is in these words:- There can be little doubt as to the occasion which led to the enactment of this provision.
The preparation of conveyances of land by unlearned persons (a practice facilitated by the general use of printed forms for such purposes even by professional lawyers) was, at the time of the passing of this Act, a very general practice in many of the provinces of Canada; and it was probably found that such forms in many cases were made to do duty for mortgaging and transferring land under the new system; and the provision mentioned was doubtless suggested by the frequent occurrence of such cases.
It was evidently thought that in those cases it would be unfair to deprive the mortgagee of the benefit of powers which the parties might be presumed to have contemplated he should be entitled to exercise and he was given the option of resorting to them if the inspector of land registries should approve of the registration of his mortgage. The points to be noted are, first, that it was deemed necessary to make a special provision conferring on the mortgagee in such circumstances a right at his election to proceed under his conventional powers, a provision which seems superfluous if the appellant's contention be correct that the mortgagee under any registered mortgage may ipso jure have the benefit of rights and powers which he might at common law have exercised under a mortgage containing the like provisions; and secondly, the language used in authorizing the mortgagee "to proceed as if the land were under the old system" rather pointedly indicates that in the legislator's view proceedings by way of sale under a conventional power or by way of sale or foreclosure through a court of equity were as a general rule competent to a mortgagee only in respect of land "subject -to the old system."
Thus far of the legislation as it stood in 1892 when the mortgage in question was executed. In 1900 some amendments were introduced and it was one of these (section 108 of that Act) on which Mr. Coyne chiefly relied on this branch of his argument. That section is as follows:- The contention is that the mortgagee is by virtue of this enactment in the same position for all purposes as if the legal estate were vested in him and it follows, it is said, as a necessary corrollary that a conventional power of sale confers upon a statutory mortgagee the same powers of disposition over the mortgagor's title as would be vested in a legal mortgagee at common law.
The section read by itself with due attention to the phraseology employed appears to me to mean this: So long as the security is on foot as a security and the ownership of the land is consequently vested in the mortgagor the first mortgagee is to have certain rights and powers in respect of the land and they are to be the rights and powers to which he would by law be entitled if -the legal estate were actually vested in him under an instrument such as that described. That is not to say at least so it seems to me this enactment the statutory mortgagee is endowed with any novel power to extinguish the mortgagor's title or to convey an estate to a purchaser; and there are some considerations which I think make it impossible to give such an effect to the section. The first of these considerations is that this section, as I have already mentioned, was to be found in the Act which the Judicial Committee was discussing in the passage I have quoted and I think if the intention in re-enacting the section in Manitoba had been to establish the law upon a footing different from that indicated in the view there expressed we might have expected something explicit to indicate that intention. Then this section deals with the rights of the first J.
mortgagee only. That would appear to indicate that those rights only are contemplated with which the law would invest a legal mortgagee as peculiarly incidental to his possession of the legal estate. If rights of foreclosure and sale, independently of the other provisions of the Act, were in view there appears to be no explanation why the benefit of such rights was withheld from the holders of mortgages subsequent to the first.
In considering, moreover, the effect of the amendment embodied in section 108 it is to be observed that it must be read with other amendments which were introduced into the statute at the same time and particularly with the amendments affected by sections 100 and 110 of the Act. These latter amendments, it is true, are not expressly (as section 108 is) made applicable to existing mortgages.
But it is not, of course, to be supposed that the last mentioned enactment having been declared to be applicable to existing as well as to future mortgages was intended to have an operation in respect of future instruments different from its operation in respect of those already existing; and we may properly look at the whole of the contemporary legislation which is in pari materid in order to ascertain the effect of any part of it.
Section 100 makes explicit what, as I have already mentioned, was already implicitly in the Act; that the mortgage does not vest in the mortgagee any estate or interest in the land pledged as security. That section declares that the first mortgagee is to have no "interest" in the land thus emphasizing the characteristic of the statutory mortgage upon which I have been dwelling, viz., that, as regards title, the mortgagee has no registered interest, but only powers of disposition.
J. The amendment embodied in section 110 emphasizes another feature of the Act, viz.: that, in course of the exercise of the statutory powers to extinguish or dispose of the mortgagor's title, the legislature has provided for the protection of the mortgagor by subjecting such proceedings to the supervision of a public officer. The proviso to that section is as follows:- This enactment affords evidence of the care with which the legislature deemed it necessary to protect the mortgagor against oppression or unfairness or mere carelessness on the part of the mortgagee as well as improvidence on his own part in this matter of the sale of the mortgaged property.
The provisions section 109 by which the period of one month which that section requires shall elapse between the mortgagor's default and the service of notice of intention to sell is permitted to be extended, but is not allowed to be abridged; and the provision of section 110, first introduced in 1892, requiring that the manner in which the sale is to be conducted as well as the conditions of sale shall be determined by the registrar are other instances of the same careful forethought for the interests of the embarrassed mortgagor. I have no doubt these precautions were not taken without good reason; and it would require some language more apt to the purpose than that of section 108 to convince me that the legislature intended by that section to enable the mortgagee by the simple expedient J.
of exacting a conventional power of sale to neutralize these carefully devised expedients for the protection of the mortgagor.
For these reasons I think that whether we regard the rights of the mortgagee as governed by the enactments of the Act of 1900, or by those in force in 1892 when the mortgage was executed, the conventional power of sale on which the appellant's title rests conferred no legal authority upon the mortgagee to extinguish the registered title of the mortgagor except under and according to the express provisions of the statute in that behalf.
It is still necessary, however, to refer to the Act of 1906. Sections 2 and 3 of that Act are as follows: These enactments were passed long after the sale in question took place and, notwithstanding the form of the amendment in section 3 and notwithstanding the fact that the amendment of section 108 would by the express terms of that section apply to mortgages in existence at the time the amendment was passed, they cannot, I think, be taken to have any such retrospective effect as to determine the construction and operation of the "Real Property Act" at the date either of the execution of the mortgage in question on this appeal or of the professed exercise of the power of sale. Harding v. Commissioners of Stamps for Queensland(1), at page 775. These amendments are, however, to a limited degree not without relevancy to the point under discussion. They afford an additional instance in which the legislature, having before it the subject of proceedings by the mortgagee for the extinguishment of the mortgagor's title, seems to have deliberately avoided any recognition of proceedings under a conventional power of sale; and, furthermore, while these enactments constitute a departure from the strict principle of the earlier enactments as explained by the Privy Council in National Bank of Australasia v. United Hand-in-Hand Band of Hope Co. (2), at pages 405 and 506, in that they provide for proceedings for foreclosure and sale in Equity they indicate no abandonment of the principle to which I have adverted, of requiring all proceedings for the extinguishment of the mortgagor's title to take place under the supervision of a public officer.
As I have already said, I do not think it was seriously contended that the transfer in question could be supported as a transfer made in execution of the statutory power of sale; and I agree that such a contention is quite hopeless.
I think it is not a forced construction of the
Act of 1891, as amended in 1892, or of the Act of
1900, to say that the express provisions of these statutes in respect of the exercise of the statutory power of sale relating to the supervision by the registrar over the manner and conditions of sale and to the giving of notice of intention to sell are imperative provisions; and that the "special covenants" which are authorized to be introduced into the statutory mortgage must be such as are not repugnant or contrary to those provisions. Assuming then that the power of sale in the mortgage in question may fairly be read as professing to give an authority to the mortgagee to sell without notice, and assuming also that the rights of the parties are not to be governed by section 110 of the Act of 1900, such a dispensation from observance of the requirements of the statute could, nevertheless, not be permitted to take effect. The respondent's case, however, does not necessarily rest upon this view that the proceedings by the mortgagee under the statutory power are thus inexorably prescribed by the statute; because it is perfectly clear that there is nothing in the mortgage indicating an intention to dispense with the supervision by the registrar, required by section 109 of the Act of 1891 as amended by that of 1892, and, moreover, there is no pretence that any supervision took place, or that there was any attempt in fact to observe the conditions of the statutory power or any intention to exercise that But it is suggested that the power in question gave some authority to a mortgagee to vest equitable rights in a purchaser in defeasance of the mortgagor's title. On that suggestion I have to make two observations in limine. First: No court governed by equitable principles would permit itself to be made an instrument in effecting the evasion of the imperative provisions of section 110 (either as to notice or as to supervision), under the pretence of protecting equitable as distinguished from legal rights; and, secondly, the action was not brought to enforce equitable rights.
There is not a shadow of a suggestion of such rights in the pleadings or in the record from the first to the last page. The right asserted is the absolute legal right to be registered as owner of the mortgaged property. What facts relating to the conduct of the parties having a bearing upon the equities between them might have been disclosed if a claim based upon equitable grounds had been put forward it is impossible now to say.
It is clear, however, from the mortgage deed alone that no equitable rights in the land in question have been vested in the appellant.
If an attempt were made by a debtor (without formally vesting in his creditor an estate or interest and without creating any trust or executing any assurance to uses) to confer on the creditor as security for his debt a power to sell land held under a common law title then no doubt a court of equity might, in a proper case, find a method of giving effect to such an instrument by way of equitable charge.
And in the case of an informal document professing to create such a power a trust in favour of the creditor or in favour of purchasers from him might be implied if it were necessary to imply such a trust in order to prevent the instrument failing of operation entirely.
Such a case is perhaps conceivable.
But it is clear that it would be a violation of principle to imply any such a trust unless on the one hand it was manifest that the parties really intended a trust to be created or on the other it was necessary to assume they had done so in order to prevent a failure of consideration.
Now consider the instrument before us. First the instrument is a formal conveyance prepared, as we may assume, by the solicitors of a great mortgage company.
There is not a word in the document to indicate an intention on the part of anybody that a trust in favour of the mortgagees or a purchaser should be created.
On the other hand it is indisputable that the instrument was intended to be a statutory mortgage taking effect under the statute and all the probabilities of the case favour the view that the power of sale was intended to be a power taking effect as incidental to such a mortgage and to confer authority to deal with the registered title and to vest in the purchaser a title under the "Real Property Act" by the execution of a transfer which could be registered under that Act without resorting to judicial proceedings.
The assumption that the parties intended to create a trust in favour of the mortgagee, or a purchaser to be nominated by him, would really be a very extravagant one; and I do not think it was welcomed by Mr. Coyne when I suggested it to him during the course of his useful and able argument. It is really impossible to suppose that these parties ever entertained the idea of vesting in the mortgagee (in addition to the legal authority to deal with the mortgagor's estate conferred upon him by the statute) some equitable right to which effect could only be given by proceedings in equity or the authority to confer some such right upon a purchaser.
The reading of the clause in question most consonant with the probable intentions and expectations of the parties is, as Mr. Wilson argued, that which treats it as a power of sale to be given effect to under the authority of and through the machinery provided by the statute. (dissenting).-On this appeal several questions present themselves for determination:- Whether the title of a registered owner of land under the "Real Property Act" of Manitoba is extinguished by adverse possession of the land held by his mortgagee and persons claiming under him in circumstances and for the period which would under J. section 20 of the Revised Statutes of Manitoba, chapter 100, extinguish the title to it of the mortgagor if the land were not under the Act.
(2) Whether, in the case of a mortgage of land registered under the Act, the mortgagor may, by introducing apt and sufficient words into a statutory mortgage, confer upon his mortgagee a power of sale additional to and independent of the statutory power given by sections 109 and 110 of the Act, and whether such a power, if so created, may be exercised by the mortgagee as in the case of a like power conferred on a mortgagee of land not under the Act and without reference to the provisions of sections 109 and 110.
(3) Whether the power of sale contained in the mortgage in question in this action should be deemed a power independent of and additional to the statutory power conferred by sections 109 and 110 or should be deemed merely a variation of such statutory
(4) Whether the words used in the mortgage are sufficient to confer an effectual power of sale.
(5) Whether they give a power of sale without notice; and
Whether, in view of the fact that the mortgagee takes no interest or estate in, but merely obtains security on, the land (section 100), the special power of sale, if effectually given, can be exercised without resorting to the provisions of sections 109- 112 of the Act.
The clause in the mortgage upon which the five SmTH latter questions arise is as follows:- It is also covenanted between me and the said mortgagees that if I shall make default in payment of the said principal sum and AnglinJ.
interest thereon, or any part thereof at any of the before appointed times then the said mortgagees shall have the right and power and I do hereby covenant with the said mortgagees for such purpose and do grant to the said mortgagees full license and authority for such purpose when and so often as in their discretion they shall think to enter into possession either themselves or their agent, of the said lands, and to collect the rents and profits thereof, or to make any demise or lease of the said lands, or any part thereof for such terms, periods, and at such rent as they shall think proper, or to sell the said lands and such entry, demise or lease shall operate as a termination of the tenancy hereinbefore mentioned without any notice being required, and that the power of sale herein embodied and contained may exercised either before or after and subject to such demise or lease.
Provided that any sale made under the powers herein may for cash or upon credit or partly for cash and partly credit and that the said mortgagees may vary or rescind any contract for sale made or entered into virtue hereof.
The mortgage provides that the expression "mortgagees" wherever it is used in the mortgage shall include the mortgagees' "successors and assigns." For convenience I shall deal with the questions in an order somewhat different from that in which I have stated them.
Assuming for the moment, that an owner of land registered under the "New System" can, in a statutory mortgage under the "Real Property Act," confer on his mortgagee a power of sale other than and independent of the statutory power, I think that the provision of the mortgage which I have quoted creates such a power.
It purports to give to the mortgagee an express authority "to sell the said land" without attaching'to it any of the conditions of the statutory The statutory power (at all events unless expressly negatived, section 157) is inherent in every statutory mortgage.
No words conferring or declaring it are required in the mortgage. Reference is properly made to it only for the purpose of modifying, or, perhaps, of excluding it. Unless another and an independent power was contemplated by the parties, the provision in the present mortgage granting to the mortgagees full license and authority to sell the lands is entirely supererogatory.
It is scarcely necessary to refer to the canon of interpretation opposed to such a construction. Moreover, the reference in the concluding proviso of the clause quoted from the mortgage to "any sale made under the powers herein" indicates that the parties contemplated the existence of more than one power of sale the inherent statutory power and also the power expressed in the mortgage.
In the absence of any other allusion in the mortgage to the statutory power I find no support for the suggestion that the purpose of the clause under consideration was not to create a special and independent power of sale, but merely to modify the statutory power.
I agree with the learned judges of the Court
Appeal for Manitoba that the words "without any notice being required" apply only to the termination of the tenancy of the mortgagor provided for in the mortgage and do not affect or qualify the authority to sell. But I am also of the opinion that, in the absence of any condition as to notice being annexed to it, the express power of sale conferred by the mortgage may be exercised without notice.
Jones v.
Matthie(1); Bythewood and Jarman's Conveyancing
(4 ed.), p. 689; Smith's Equity (4 ed.), p. 297.
No precise or technical form of words is necessary to create a power of sale. It suffices that the intention be sufficiently denoted.
Sugden on Powers (8 ed.), p. 182; Farwell on Powers (2 ed.), p. 48. intention is here clearly expressed; the donor was competent; the instrument a deed is apt; and the object is lawful and proper.
The objection to the sufficiency of the power urged on behalf of the respondents, that the donee of it has no estate, legal or equitable, in the mortgaged land, is possibly met, as Mr. Coyne contended, by the provisions of section 108 of the Act which gives to every first mortgagee
I rather think, however, that this provision is intended to preserve to, or to confer upon the mortgagee, for the protection of whatever interest he may have under the terms of the statutory form of mortgage, rights and remedies other than the power to convey the land and that it would not enable him in the exercise of a power of sale other than that conferred by the statute to give a conveyance which would have the effect of vesting in his purchaser the mortgagor's title and estate in the mortgaged registered land. I am confirmed in this view of the scope and purpose of section 108 by the fact that, notwithstanding its presence in the statute, the legislature deemed special provisions necessary to give to the conveyance of a mortgagee exercising the statutory power of sale the effect of vesting in the transferee the mortgagor's title and estate (sections 111, 112). But the objection, in my opinion, cannot prevail, although it should be held that, for the purposes of powers of sale section 108 is inapplicable and that the mortgagee is in the same position as if he were a stranger without any estate or interest in the land, and although the power should be regarded as simply collateral, or as a power in gross because exercisable for the benefit of the donee.
Sugden on Powers, p.
47(8).
A power given to nominees of a testator to sell estates vested not in them, but in devisees of the donor was held by Kay J. in Re Brown(1), to be unquestionable and was treated as an instance of the equitable powers arising, as put by Lord St. Leonards in his book (8 ed., pp. 45-6) out of and whom
In the Brown Case(1), the donor's devisees of the estate were bound in equity to convey to the purchaser from the donees of the power; in the present case the mortgagor, in whom the whole estate remained notwithstanding the mortgage (section 100) and those claiming under him are subject to the like duty arising out of the trust of the land declared by the mortgagor in giving to his mortgagees a special express power of sale, while retaining the whole estate in the land. If the mortgagees neither had themselves, nor had the right, by a contract made in the exercise of their power of sale, to create in their purchaser an equitable interest in the land, which the mortgagor or his representatives might be compelled to perfect by a transfer or conveyance, they were at all events empowered to confer on him a right to claim such a transfer or conveyance which a court exercising equitable jurisdiction will enforce.
The registrar is not obliged indeed he is probably not entitled - J. recognize or to register a transfer of the land executed by a mortgagee of new-system land acting under any other than the statutory power. But the equity which the mortgagee acting under a special power of sale creates as against the mortgagor and those claiming under him by the contract with his purchaser, will be recognized by the courts and will in a proper proceeding be enforced against them; Re Massey and Gibson ; Wilkie .v. Jellett(2) ; and the court will give proper directions for the execution of any necessary assurances and for action by the registrar upon them. It is noteworthy that the statute itself contains a provision under which a purchaser from a mortgagee, selling new-system land under a power of sale in his mortgage. may, in order to complete his title, be entitled in equity to a transfer from the mortgagor the registered owner claiming under him and may be obliged to resort to a court of equity to compel such a conveyance.
Section 83 provides for the registration of dld-form instruments dealing with lands registered under the new system.
As to its "operative parts," when so registered such an instrument is declared to have the same effect as "an instrument of like nature under the new system."
Estates or interests in land under the new system are transferable not by execution and delivery of an instrument, but only by and upon registration of it (sections 80 and.81).
An unregistered instrument merely confers a right or claim to its registration (section 90).
An old-form mortgage of land under the new system, though its registration should be procured under section 83, does not transfer to the mortgagee any estate or interest in the mortgaged premises (section 100).
But section 83, nevertheless, provides that
Should he exercise the latter option and proceed to sell under his power of sale without reference to the registrar, having no estate or interest in the land, he could not, in the absence of some statutory provision giving that effect to his conveyance, vest any legal title in his purchaser. Re Hudson and Howes' Contract(1). Such a provision is made by section 112 in respect of conveyance by mortgagees in the exercise of powers of sale contained in mortgages affecting the land before it was brought under the new system: In the case of a purchase from a mortgagee exercising under the old system the power of sale in an oldform mortgage registered under section 83 against newsystem land, unless the mortgagee had been made the mortgagor's attorney to convey his estate and the sale was made while the mortgagor was still the owner of the land, the purchaser or transferee would acquire merely an equitable interest or an equitable right to a transfer which the mortgagor, or his representative, would be compellable in a court of equity to perfect by a legal transfer of the mortgaged property. If, therefore, it is competent for the registered owner of land under the new system, when giving a mortgage under the Act, to confer upon his mortgagee a power of sale independent of and additional to the inherent statutory power conferred by sections 109 and 110 and exercisable without reference to those sections, no case having been made of fraud or mistake affecting the creation, or of imposition or unfair dealing affecting the exercise of the power here in question, I see no reason why the sale under it by the assigns of the mortgagees should not be upheld as giving to their purchasers an equitable interest or right enforceable against the mortgagor or his representatives, or why the plaintiff, who was that purchaser, should not in this action obtain appropriate relief. In the absence of a provision, such as is found in section 112, or of a power-of-attorney from the mortgagorenabling the mortgagee effectually to transfer the mortgaged land to, and to vest it in his purchaser, the latter must, if the mortgagor or his representatives will not voluntarily execute a transfer in his favour, seek the aid of the courts to perfect his title and to put him in a position to become the registered Finding nothing in the statute which ousts their jurisdiction, I know of no reason why the courts should not grant to the plaintiff the relief to which he has shewn himself to be entitled.
But, can the owner of land registered under the "new system" give to his mortgagee a power of sale other than the statutory power and exercisable without observance of the requirements of sections 109 and 110 of the Act ? There is no clause in the "Real
Property Act" which forbids him doing so.
Neither can it be said that the existence of such a right would be incompatible with any provision of the Act or destructive of any right which it confers or of the J. machinery which it provides for the cases to which it applies. All that the statute enacts is that, without an express power of sale being given him in his mortgage, a mortgagee taking a statutory form of mortgage is authorized and empowered to sell the mortgaged land. If he should elect to exercise this statutory power certain terms and conditions are prescribed which he must observe.
But nowhere does the Act say that the statutory power shall be the only power of sale which a mortgagee of land under it shall have or exercise, or that any other power of sale which the mortgage may purport to give shall be exercisable only on terms and conditions the same as those prescribed for the exercise of the statutory power.
Neither is it provided by sections 109 and 110, or by any other section of the Act, that, in every case and notwithstanding any provision to the contrary which may have been made in the mortgage, it shall be the right of a mortgagor that his mortgagee shall not exercise any power of sale of the mortgaged premises until there has been one month's default and (as the
Act stood prior to 1900, or 1902) until a notice has been given by the mortgagee under section 109 and another month has elapsed after the giving of such notice. No such right is conferred on the mortgagor.
All that the statute provides is that, if the mortgagee wishes to avail himself of the statutory power of sale which it confers, he may do so only upon observing the prescribed conditions. In this respect the provisions of the Manitoba "Real Property Act" are similar to those of "Lord Cranworth's Act."
No one ever thought that the provisions for a statutory power of made by that legislation prevent mortgagors A Jand mortgagees contracting for independent and additional powers of sale upon such terms as they may think proper.
It is contended for the respondents, however, that it is a fair and reasonable implication from -the Act taken as a whole that the legislature intended to deny to mortgagors and mortgagees of land under it the right of contracting for any special power of sale and to prevent a mortgagee of such land obtaining any power of sale other than that which the Act itself confers on the statutory mortgagee; and in support of this view great reliance is placed on the fact that a mortgagee of land under the Act acquires no estate or interest in it.
In examining the statute in order to discover whether it affords evidence of any plan or scheme legislation incompatible with the existence of a right to provide in the statutory mortgage for a special power of sale exercisable independently of sections 109 and 110, I find that in section 99 a form of mortgage of new-system land is prescribed. But clause (z) of section 2, it is provided that:- On turning to the prescribed form, "D," I observe that, in the third clause, it contemplates special provisions being made - "Here set forth special covenants if any."
Section 157 of the statute provides that Although the power of sale given by section 110 is not "declared to be implied in" the statutory mortgage, as are the covenant for indemnity mentioned in section 89 and the covenants and powers in statutory leases mentioned in sections 94 and 95, I incline to the view that the power of sale given by section 110 should be regarded as within the provisions of section 157. But whether that is or is not the case, the special power of sale given by the mortgage now under consideration was a "special covenant" and was an alteration in the nature of an addition to the prescribed form which it was, in my opinion, competent for the parties to make, if they thought "the circumstances the case rendered it necessary," and it was not "a variation in substance" and certainly did not affect the "validity or regularity" of the instrument. It is not the scheme of the Act that the implication of statutory covenants or powers in other instruments should preclude the introduction of express covenants and powers of an entirely different character and not mere modifications of the implied covenants and powers, or the enforcement, in the event of breaches, of such express covenants or of any special remedies for which the parties may have contracted. This has been held in respect to clauses in the New South Wales and South Australian Acts, similar to sections 93-96 of the Manitoba statute, which provide for implied covenants and powers in leases and for the determination of such leases by proceedings in the registrar's office where there has been non-observance of the implied covenants. Baker's Creek Consolidated Gold Mining Co. v. Hack(1); Bucknall Reid(2). Provision is made by sections 83 and 112 of the Act, J. already alluded to, for the exercise by a mortgagee in certain cases of powers of sale in respect of new-system land other than that conferred by the statute and without observance of the provisions of sections 109 and 110.
The respondent bases on the presence in the statute of sections 83 and 112 an argument, undoubtedly entitled to some weight, that they indicate an intention on the part of the legislature that, except in the cases thus specially provided for, no power of sale other than the statutory power conferred by section 110 shall be exercisable by a mortgagee of new-system land. I rather think, however, that these provisions indicate that the Act was not meant to be so inelastic as the respondents contend; that contractual powers of sale other than the statutory power are not precluded; and that, while, excdpt in the special case dealt with by section 112, the statute does not facilitate the exercise of contractual powers specially created, or aid or give efficacy to transfers made under them, persons using them and claiming under them are permitted to assert and exercise such rights as their contracts expressly give them and to obtain such relief as the courts may allow.
There is nothing to prevent the parties inserting a provision enabling the mortgagee who exercises a special contractual power of sale to convey to his purchaser, as attorney of the mortgagor, the latter's estate in the mortgaged land. Because not essential to its exercise, the power of sale does not, I think, carry such a power of attorney as a necessary incident. To avoid the expense and delay involved in recourse to the courts, such an express provision would, however, seem to be reasonable and desirable in the interest of all parties whenever a special contractual power of sale is given.
But when the mortgagee is not so empowered to convey the mortgagor's estate, or where the mortgagor has parted with his estate, I perceive no reason why the purchaser under a special power of sale lawfully exercised may not successfully invoke the equitable jurisdiction of the courts. If this view be not correct it would be impossible for mortgagors and mortgagees to provide for the sale of land mortgaged under the new system until there had been one month's default as the Act now stands, and, as it was prior to the introduction in 1900, or 1902, of the proviso to section 110, until there had been at least two months' default and certain notice had been given.
In many cases where the property dealt with is highly speculative in character or where for other reasons the mortgagee is willing to lend his money only if enabled in the event of default to realize immediately upon his security, owners of registered land might find themselves seriously embarrassed and perhaps even driven to sacrifice it because unable to obtain a loan upon it. Again, if the statutory power of sale is the only permissible power, and if it is necessarily inherent in every mortgage (as it must be unless it may be negatived under section 157) an owner of new-system land insisting that his mortgagee should have no power of sale whatever would find himself unable to give a mortgage on his land. Having regard to the tendency of modern legislation towards permitting freedom of contract in dealing with land as with other property and to the inconveniences and difficulties which such a construction of the statute would entail, I think we would not be justified in assuming that the legislature meant to tie the hands of owners of land registered under the new system, as is contended forf the respondents, unless, that intention not being distinctly expressed, it is abundantly clear that the scheme of the Act would be defeated if the contrary view should prevail. Notwithstanding the explicit language of section 80 that
I have no doubt that where it was intended to operate as a security for money, a registered transfer of land under the Act may, as between the parties, have no greater effect than a mortgage of land had under the old system, and that it is within the power of a court clothed with equitable jurisdiction to declare that the person registered as owner under such a transfer is merely a mortgagee and that his transferor has an equity of redemption in the land and to require the person registered as owner to submit to redemption. That such a court may exercise this jurisdiction where there is an unregistered deed of defeasance was determined in Sander v. Twigg (1). it can afford the same relief where it is proved that the real understanding of the parties was that a transfer though absolute in form, should be taken by way of security only is, I think, equally clear and that apart from the provisions of section 126 of the statute. Williams v. Box(1).
I make this passing allusion only because it is illustrative of the equitable jurisdiction which the statute, notwithstanding its sweeping terms, should be held not to have destroyed.
J. Although section 71 declares thatwere it not for the express provision of section 75, the title of a registered owner of land holding such a certificate would, nevertheless, be extinguishable by adverse possession for the period prescribed by the Statute of Limitations.
Belize Estate and Produce Co. v. Quilter(2).
Without committing myself to the proposition advanced by Mr. Coyne that the Manitoba "Real Property Act" "merely introduced a simpler system registration" and did not in any other respect interfere with, modify or displace the general law respecting real property, I think, that, in view of the instances to which I have alluded, it cannot be said that there is any clear or well-defined scheme of the Act to which it would be repugnant that a mortgagee should be given by contract a special power of sale independent of, and exercisable without reference to the provisions of sections 109 and 110.
It would have been so very easy for the legislature to have provided, if that were its purpose, that, whatever the provisions of his mortgage, a mortgagee of land under the new system should not have or exercise over the mortgaged land any power of sale other than that conferred by the statute, that, in the absence of such a provision, I think we would not be justified in as- J. suming that it was intended that this should be the effect of the statute.
The argument against the existence of the right to confer any power of sale other than the statutory power based on the fact that the mortgagee has no estate or interest in the land loses any force it might otherwise have when we find that, notwithstanding that fact, a contractual power of sale and its exercise without reference to the provisions of sections 109 et seq. are expressly permitted under section 83, the purchaser, in the absence of a special provision in the mortgage enabling the mortgagee to convey the mortgagor's estate, being left to obtain title either by the voluntary act of the mortgagor or his representatives, or through the intervention of a court of equity. Although the observation of Lord Macnaghten may be applied with peculiar fitness and significance to a mortgage under the Manitoba "Real Property Act," I am, for the foregoing reasons, of the opinion that it is competent for the parties to such a mortgage to provide for a special power of sale exercisable without reference to the provisions of sections 109 and 110; that in the mortgage now before us this has been sufficiently done; that, in the absence of any proof of fraud or mistake in its creation or of imposition or unfairness in its exercise, the power was effectual and was well exercised; and that the plaintiff obtained if not an equitable interest in the land at least an equitable right to a conveyance of the land from the mortgagor or his representatives which the J. court, in the exercise of its equitable jurisdiction, will recognize and enforce.
I would, therefore, with respect, allow the plaintiff's appeal with costs.
Judgment should, in my opinion, be entered declaring that the sale of the lands to the plaintiff was a valid and proper exercise of the power contained in the mortgage in question, and directing that the defendants, the National Trust Company, in whom as personal representatives of the deceased mortgagor, the legal ownership of such land is vested under 5 & 6
Edw. VII. (Man.), ch. 21, shall execute and deliver a transfer of such lands to the plaintiff, and that, upon the plaintiff filing in the land titles office such transfer together with the deed executed by the imortgagees in the exercise of the power of sale, the districtregistrar shall cancel the existing certificate of title and issue a new certificate of title to the lands in question in favour of the plaintiff for such estate a the mortgagor held therein.
The plaintiff should also have his costs of this action including the costs the appeal to the Court of Appeal for Manitoba.
J.:-I concur with the views expressed by Mr. Justice Duff.
Appeal dismissed with costs.
Solicitors for the appellant: Ailins. Fullertoi, Copie
& Foley.
Solicitors for the respondents: Tupper, Galt, Tupper,
Minty & McTacish.
ACTION-Vendor and purchaser
Condition of agreement
Payment on account of price-Canellation-Notice - Return of money paid- Rescission-Form of action - An agreement for the sale of lands acknowledged receipt of $600 on account the price and provided, in the event default in the payment of deferred instalments, that the vendor might, giving a certain notice, declare the agreement null and void and retain the moneys paid the purchaser.
fault the purchaser to make payments according to the terms of the agreement the vendor served him with a notice for cancellation which incorrectly recited that the gontract contained a stipulation for its cancellation, in case default "without notice," and concluded declaring the contract null and void
"in accordance with the terms thereof as above recited."
The vendor, subsequently, refused a tender of the unpaid balance of the price and re-entered into possession of the lands.
In an action the purchaser for specific performance or the return of the amount paid, rescission was not asked for.-Held, that, as the vendor had not given the notice required the conditions of the he could not retain money as forfeited on account of the purchaser's default; that, as the payment had not been made as earnest, but on account of the price, the purchaser was entitled to recover it back on the cancellation of the contract; and that, as the relief sought the action could not granted while the contract subsisted, a demand for rescission must necessarily implied from the plaintiffs claim for the return themoney so paid.
2-Construction of statute
Fishery and game leases-Personal servitude- Possession-Use and occupation-Right of action-Action en complainte-Renetted leases - Priority-Watercourses
Action-Continued.
- Works to facilitate lumbering operations - Penning back waters out of track Injury preserves junction - Demolition of works.... 3-3funicipal corporation - Highways
Repair sidewalks
Negligence
Right of action-Construdtion of statute- "Vancowver City Charter." .......................
ACQUIESCENCE-Municipal corporation - Assessment and taxes-Meetings Transaction of business outside limits ofmunicipality - Place of meeting-Revision assessment rolls for arrears of taxes
- Limitation of action.. 425 "Supreme Court Act." R.S.C. (1906), s. (c)-Interests involved.]
leave to appeal from the judgment the Supreme Court of Alberta Alta. the magnitude of the interests ALBERTA................ 2- Matter in controrersy - Daming waterceurse-Flood- Appeal-Continued.
ing lands-Servitude
Objection to jurisdiction
Costs.] The plaintiff claimed (the amount awarded arbitrators)
damages in consequence the defendants' dam penning back the water of a stream in such a manner as to his lands; also asked for the demolition the dam and an order restraining the defendants from thereby causing further injury to his lands.
By the judgment appealed from the award was clared irregular, but damages, once for all, were assessed in favour the plaintiff for recourse being reserved to him in respect any further right of action he might have for the demolition the dam, etc.
On an appeal being taken the defendants the plaintiff did not move to quash, as provided by
Supreme Court Rule No. but took jection, in his factum, to the jurisdiction -of the Supreme Court of Canada entertain the appeal.-Held, that the only issue on the appeal was in respect damages assessed at an amount below tnat limited for appeals from the Province Quebec.
The appeal was, consequently, quashed, but without costs, as objection to the jurisdiction the court had not taken motion provided the Rules Practice. Price
Brothers <
Tanguay Can.
followed.
PUr
PAER BUREAU........
Appeals from Board of Railway
Commissioners
- Form of order Supreme Court motion for directions as to the settlement of the minutes of the the Supreme Court
Canada on an appeal under section
(3) the "Railway Act," leave the Board, with questions referred, the court directed that the registrar should certify the opinion the court in answer to the question submitted.
................
4-Municipal by-law - Coming into force - Time for appealing ........
"Supreme Court
Act," R.S.C. c(1906), s.
Interests involved
"Alberta Local Improvement Act," Edw. VII.
and amendments - "B.N.A. Act,
(D.)-Assessment and Constitutional way aid
Crown lands Interests private "Free Special leave to appeal from the judgment of the Supreme Court of Alberta Alta. L.R. was granted, under the provisions of section
",Supreme Court Act," R.S.C. because of the magnitude of the interests involved.-Provincial legislatures may authorize the taxation of beneficial equitable interests acquired in lands wherein the Crown, in the right the Dominion of Canada, holds some interest and the legal estate. The legislature of a province may provide for the levy and collection taxes imposed the transfer of the interests affected such taxes.-The Dominion statute, Viet. ch. authorized the granting of aid for the construction of a railway subsidy in Crown lands, and, it was declared that such grants should "free grants" subject only to the payment, on the issue patents therefor, the costs survey and incidental expenses, at the rate of ten cents per acre.
The lands in question formed part of the land-subsidy, earned by the railway company and reserved and set apart for that purpose order-in-council, had been conveyed deed poll to the appellants the railway company prior to the issue a Crown grant.
While still unpatented, these lands had been rated for taxes and condemned for arrears under the statute of Alberta, 7 Edw. - Held, that the terest of the appellants in the said lands was subject to taxation and liable to dealt with under the provincial statute, although letters patent of grant thereof the Crown had not issued.- Held, also, tnat allotment of these lands as "free grants," under the subsidy Act, related only to exemption from the usual charges made in respect public lands or on behalf of the Crown, except the cost of survey, etc., and did not exempt the appellants' interest therein taxation under the provisions of the provincial statute, although neither the legal estate nor any interest therein remaining in the Crown could liable to
Alta. L.R. 446) affirmed.
Rural Munipality of North Cypress Canadian
Pacific Railway
Tox v. OF
........................
2-unicipal corporation - Meetings of council
Transacting business outside limits vision of assessment rolls - Sale for arrears of taxes s.
(B.C.)-R.S.B.C., 144-Statutory relief
Per Fitzpatrick C.J. and Idington and
Anglin, JJ.-Prior to the amendment the British Columbia "Municipal Act, the "Municipal Amendment
Act, Viet. (B.C.)
municipal councils subject to those statutes had no power to hold meetings for the transaction of any administrative, legislative or judicial business the municipal corporation at a place outside the territorial boundaries the municipality.
Per Fitzpatrick C.J.
and Idington, Duff and Anglin JJ.- Courts revision organized under the
British Columbia statutes, have power to exercise their functions as such except at meetings held within the territorial limits the municipality where the property, described in the assessment rolls to revised by them, is situate.-Section
"Municipal Amendment Act, 1894,"
serted in the "Municipal
(B.C.), new provision, section (a), as follows: "All meetings of a municipal council shall take place within the limits the municipality, except when the council have unanimously resolved that it would more convenient to hold such meetings, or some of them, outside the limits of the municipality."- Held. Brodeur J. dissenting, that there was no proof of such a unanimous resolution as the statute requires.-The council of the respondent municipality, without any formal resolution as provided the amended statute, held its meetings during several years at a place outside the limits the munici- Taxes-Continued. pality, and organized courts of revision there.
These courts held all their meetings at the same place as the council and assumed to revise the municipal assessment rolls at those meetings. council approved the rolls so revised and enacted by-laws, from year to year, levying rates and authorizing the lection of taxes on the lands mentioned in the rolls, and, after notice as provided the statutes, sold lands so assessed and alleged to in arrear the taxes so imposed.-Held, Brodeur J. dissenting, that the assessment rolls were invalid, that the by-laws levying I the rates and authorizing the collection taxes on the lands mentioned therein were null and void, and that the sales the lands made for alleged arrears taxes were illegal and no effect. Per Duff and Anglin JJ., Brodeur J. contra.-The default payment taxes, the appellant, and his subsequent inaction and silence, while aware the fact that his lands had been sold for alleged arrears of taxes, did not disentitle him from taking advantage the statutory procedure respecting the contestation of sales for arrears of taxes either acquiescence The provisions of section of the "Municipal Act, (now R.S.B.C. ch. 86 (2),) have no application to invalid by-laws enacted municipal councils on occasions when they could not perform legislative functions.-The pealed from was reversed, Brodeur J. dissenting, on the ground that, as the council had held its first meeting cipality and adjourned for the purpose at place outside of the municipality where all other meetings -vere held, the laws approving of the assessment rolls and those levying rates and authorizing the collection of taxes were valid and the sale the lands in question for arrears such taxes was legal and effective. Statutory powers - Immovable outside boundaries - Purchase on credit-Prornissory notes
Hypothe
Loans-Approval of ratepayers-Special rate statute-(Que.) Edw. VII.,
R.S.Q. tit. XI.-"Cities and Towns
..........................
Literary
Obligation to publish. .......................
BANKING
- Principal and agent - Negotiable instrument- Promissory note - Discount
Condition as to use of note- Hond fide holder - "Bills of Exchange
Act," R.S.C., ss. 32.. 401
BILLS - Promissory note
-Signature to blank note - Authority
Condition
- Bills of Exchange Act, ss. and
W., residing at Newmarket, owned property in Port Arthur and signed some promissory note forms which he sent to an agent at the latter place to used under certain circumstances making repairs to such property.
agent in one of the blank notes and used it for his own purposes.
an action the holder W. swore, and the trial judge found as a fact, that the notes were not to used until had been notified and authorized their use.
He also found that the circumstances attending the discount of the note the agent were such as to put the bolder on inquiry as to the latter's authority. The first finding was affirmed the Court of Appeal.-Held, affirming the judgment of the Court of Appeal
Ont. L.R. 122),
Fitzpatrick
C.J.
dubitante, that and of the
"Bills of Exchange Act" did not apply and the holder could not recover.-Held, per Davies and Anglin JJ.-The finding of the trial judge that the circumstances never arose upon which the agent had authority to use the note was not clearly wrong as to justify a second appellate court in setting it aside.-Held, per Idington J.-The finding of the trial
Bills and Notes-Continued.
that holder put quiry as to the agent's authority was justified by the evidence and bars the right to recover.-Held, per Duff J.-The establishes had no authority to use the note. 2-Partnership-Principal and agent Banks and banking-Negotiable instrument-Notice-Inquiry ........... Waterworks-Immovable outside boundaries-Purchase on credit notes
Hypothec
Approval of ratepayers-Special rate - S VII. 95-R.S.Q. tit. XI.-"Cities and Towns Act." .. 585 BILL SALE-Chattel mortgage-Sale to re- Proceedings taken in good faith ...........................
Railways "The Railway Act," R.S.C.
318(2), 323-(D.)
1 Edw. VII. (Man.) 2; 17; 1 Edw. 39-Complaints - Agreement for special rates-Unjust discrimination-Practice-Form of order reference.] In virtue an agreement with the Government of Manitoba, validated statutes that province and of the Parliament Canada, the Canadian Northern Railway Company established special rates for the carriage freight, etc., to points in Manitoba, and the Canadian Pacific Railway Company reduced its rates, which had been force prior to the agreement, in order to meet the competition resulting therefrom. The complaint made to the Board of Railway Commissioners for Canada the respondents was, in effect, that as similar proportionate rates were Board Railway Commissioners-Con.
there was unjust discrimination operating to the prejudice of shippers, etc., to and from the western points.
questions submitted for the consideration the Supreme Court of Canada,-Held, that the facts mentioned are circumstances and conditions within the meaning of the "Railway Act" to considered the Board of Railway Commissioners in determining the question of unjust discrimination in regard to both railways; that such facts and circumstances are not, in law, conclusive of the question unjust discrimination, but the effect, if any, to given to them is a question fact to considered and decided the Board in its discretion.
The Montreal Park and Island Railway v. The City of Montreal
2---Jurisdiction - Private siding - Construction of statute-"Railway Act," I ss. 26a, 226-(D.)
S - Edw. VII. c. s.
Notwithsiding has been constructed entitling the I railway company to make use of it the purpose affording shipping facilithan the owners the land upon which expropriation and compensation, has not the power, on an application under tion of the "Railway Act" (R.S.C.,
37), to order the construction and operation of an extension of such spur or siding as a branch the railway with which it is connected.
Blackwoods
Limited v. The Canadian Northern Railway (44 Can. S.C.R.
Duff J. (dissenting)
.
BROKERS-Stock carried on margin- Right to pledge.] A broker who carries stock on margin for a customer has a right to pledge it for his own purposes to the extent of the amount he has advanced.-If the broker pledges such stock as security for an amount greater than his advances, whereby he makes no profit and the client suffers no loss, he is not liable as for a conversion provided that on demand of his client he delivers to
Brokers-- Continued.
the latter the number of shares ordered and which he has been carrying for him. Anglin J. dissenting.-Per Duff J.-The broker is not liable under the above conditions if he pledges the stock believing that his arrangement with his client authorized.-Per Duff J.-The dealings complained of were in accordance with the ordinary practice of brokers in Toronto in respect to stocks being carried "on margin," and the proper inference from all the evidence was that such dealings were authorized by the arrangement between the parties.-Per Anglin J.-The broker must at all times a position to hand over the stock to his client and if, as the result his pledging it, puts himself in a position where may not able to is guilty of conversion.-Judgment of the Court of Appeal Ont. L.R. 611), affirming that the Divisional Court Ont. L.R. affirmed.
Conmee The Securities Holding to Privy Council was refused, 13th BY-LAW-Municipal corporation-Closing streets-"Passage of by-law"-Coming into force-Time for appealing - "Winnipeg City Charter"-Construction Municipal corporation-Assessment and taxes-Meetings of council-Court of Revision-Transaction of business outside limits of municipality meeting-Revision of assessment rolls- Sale for arrears of taxes-Construction statute-Statutory relief-Estoppel-Ac- Lathes
W1aterworks-Inmovable outside boundaries
Purchase credit notes-Hypothec ratepayers-Special rate-Sinking-fund - Construction of statute-(Que.) 8 Edw. VII., 95-R.S.Q. tit. XI.- CARRIERS-Negligence - Operation
Gratuitous passenger-Free pass-Limitation liability--Employer and employee-Fellow-servant - Evidence-Onus of proof.]
The plaintiff's husband was an employee engaged as a mechanic in the company's workshops and was travelling thither to his work on one of the company's passenger cars, as a passenger, without payment of fare.
freight car became tached from a train, some distance ahead the passenger car and proceeding in the same direction; it ran backwards down a grade, collided with the passenger car and the plaintiff's husband was killed.
The manner in which the freight car became detached was not shewn.
the body of deceased there was found a permit or "pass," which was not produced, and there was no evidence to shew any conditions in it, nor over what portion of the company's lines nor what purposes it was to honoured.
the close of the plaintiff's case the fendants adduced no evidence whatever, and the jury found that the company was at fault, owing to a defective system operation of their trains, and assessed damages, at common law, for which judgment was entered for the plaintiff.
that there was a presumption that deceased was lawfully on the passenger car and, in the exercise of their business as common carriers passengers, the company were, therefore, liged to use a high degree of care order to avoid injury being caused to him through negligence; that there was nothing in the evidence to shew that cealed occupied the position of a fellowservant with the employees engaged the operation of the trains which were in collision; and that, in the absence evidence shewing any agreement, express or implied, or some relationship between the company and deceased which would exclude or limit liability, the plaintiff was entitled to recover damages common law.-Judgment appealed from
B.C. Rep.
affirifed.
Nightingale v. Union Colliery
2-Board of Railway Commissioners- Private siding-Construction of statute-"Railway Act." R.S.C., ss. 26a, 226; & Edw. VII., c.32,1 ..........................
CASES-Alexander Gesman et al. (4 Sask. L.R. .affirmed........... 2-Anderson
Canadian Northern Rway. Man. R. affirmed 3-Attorney-General of Alberta V. Calgary and Edmonton Land Co. Alta. L.R. 446) affirmed ................
4-Blackwoods Limited
Canadian Northern Rway. (44 Can. S.C.R. ............
5-Campbell V. City of St. John Can. S.C.R. 1) distinguished ...... Canadian Northern Ry. v. Robinson ([1911] applied.. 7--Clarke Baillie Ont. L.R. affirm .........................
8-Coe v. Wise & 440; L.R. 1 ..... .
.. .. .. 9-Conmee v. Securities Holding Can. S.C.R. distinguished. 10-Cowley Newmarket Local Board ([18921
11-Cypress-See Rural Municipality Cypress.
The King Cotton (Q.R. K.B. reversed in part .............
13-Le
Sueur-v. Morang &- (20 Ont. L.R. 594) affirmed
14- Mackenzie Monarch Life Assurance Co. Ont. L.R. reversed .................................
Cases-Continued.
McPhaen v. City of Vancouver
B.C. Rep. affirmed .......
Docks Trustees v. Gibbs
(L.R. 1 H.L. applied .........
17-Montreal Park and Island Rway.
Co. v. City of Montreal Can. S.C.R.
256) noted ......................
18-Montreal, City of, v. Mulcair (28
19--Nightingale v. Union Colliery
Can. S.C.R. distinguished.. 263
20-Pictou, Municipality of, v. Geldert ([1893]
.......................
Price Bros. & v. Tanguay
Can. S.C.R. followed.........
Willson
23-Rivibre-Ouelle Pulp and Lumber v. Club de Chasse et de Piche Ste.
Anne (Q.R.
opinion............
24-Ross v. Chandler
Ont. L.R.
Rural Municipality of North press v. Canadian Pacific Rway.
Can. S.C.R. 550) distinguished .....
26-Sanitary Commissioners of Gibraltar Orfila App. Cas. dis- 27-Shawinigan Water and Power Co.
Cases-Continued.
Town of Shawinigan Falls (Q.R. 19 Smith v. National Trust Co. (20 Man. R. affirmed ........... 29-Snider V. Webster Man. R. 30--Sydney, Council of, Bourke 31-Wilkinson v. British Columbia Elec. Rway.
B.C. Rep. Winnipeg, City of, v. Brock et al. Man. Woodruff v. Attorney-General for Ontario, ([1908] 508) distinguished .................................
34-Young Hoffman Manufacturing Proceedings taken in good faith.] impeach a sale under powers in a chattel mortgage on the ground that an offer to prior the the the entitled actually or that the distinctly that mortto what thus intention payment.-In chattels faith Chattel Mortgage-Continued.
manner calculated to result in sacrifice of the goods.-And per Duff J., he is not obliged (regardless his own interests as mortgagee,) to take all the measures a prudent man might expected to take in selling his own property.-Judgment appealed from reversed, the Chief
Justice
J.
dissenting.
. . .. . ....
CHEQUES-Partnership agent-Partnership funds-Third party- Banks and banking-Negotiable instru- EMPLOYMENT.
COMPANY-Issue of shares-Authority to sign certificate-Estoppel-Evidence.]
Held, per Fitzpatrick C.J. and Duff J., that where statute and the by-laws a joint-stock company certain of its are empowered to sign stock certificates, and they sign a certificate under seal in favour of a person who has agreed.
to change his position on receipt of the shares it represents and who is declared therein to be the holder such shares the company is estopped from denying that it was issued its authority, even if one the officers signing it was acting fraudulently for his own purposes doing so-YHeld, per Anglin J., that the certificate is only primd facie evidence the statements therein-and such evidence may rebutted by shewing that it was issued without authority. In this case, however, Davies and Idington JJ. contra, the company failed to make such proof.- Judgment of the Court of Appeal (23
Ont. L.R. reversed, Davies and Id- JJ.
Assun. ........
CONDITION-Promissory note
Signature in blank-Discount-Principal and agent-Condition as to use of note- Bond fide holder-"Bills of Exchange
Act," R.S.C., ss. 401
2-Title to land-"Torrens System"- Condition-Continued.
-Notice-Construction of statute-Saskatcheioan "Land Titles Act," Edw. of contract-Right enforceable against registered owner ...... CONSTITUTIONAL LAW-Construction of statute-"Alberta Local Improvement Edo. VI.
and amendments-"B.N.A. Act, s. 125-53 Vict. 4 (D.)-Assessment and taxation.] Provincial legislatures may authorize the taxation of beneficial or equitable interests acquired in lands wherein the Crown, in the right the Dominion of Canada, holds some interest and the legal estate.
The legislature of a province may provide for the levy and lection taxes so imposed the transfer of the interests affected by such 2-Constitutional law of statute-B.N.A. Act, s. s.-s. 2-R.S.Q. s.
(Que.) s. 2; Edw. VII. s. 1-Legislative jurisdiction-"Direct taxation within the province"-Succession duty-Extra-territorial movables -Decedent domiciled in province.] The legislative authority a province the matter of taxation conferred sub-section of section of the "British North America Act, which authorizes the levying of "direct taxation within the province," extends to the imposition of duties upon the.transmission movables having a local situs outside the provincial boundaries which form part of the succession of a decedent domiciled within the province. Woodruff The Attorney-General for Ontario (1908), distinguished. Judgment appealed from (Q.R. 20 K.B. reversed, Davies and Anglin JJ. dissenting.-At the time of the death 11th April, the statutes force in the Province of relating to succession duties provided that "all property in, usufruct or enjoyment of movable and immovable the province shall be liable to the following taxes calculated upon the value the property transmitted, after deduct- Constitutional Law-Continued.
ing debts and charges existing at the time the death, etc."
Edw. VII. a clause was added ), as follows: "The word 'property' within the meaning of this section shall include all property, whether movable or immovable, actually situate or owing within the province, whether the deceased at the time of his death had his domicile within or without the province, or whether the debt is payable within or without the province, or whether the transmission takes place within or without the province, and all movables wherever situate, persons having their domicile (or residing), in the Province of at the time of their death," which was force at the time of the death of H. H.
26th December, iSuccession duties were levied, in respect of both estates upon the whole value of the property devolving including, in each case, movable property locally situated in the
United States of America.
The action was to recover back those portions the duties paid in respect the value of the movables situated outside the limits of the Province of Quebec.-Held, reversing the judgment appealed from
(Q.R. 20 K.B. 164), Davies and Anglin
JJ. (dissenting)
, that the movable property situated outside the limits of Queforming part the succession
H. H. was subject to the duty so imposed.-On an equal division of opinion among the judges of the Supreme Court of Canada the judgment appealed from stood affirmed in so far as it that the limits Quebec forming part of the estate of L. was not liable to such
TnE V.
- Literary work-Publisher ani author - Obligation to publish.]
In MA. & publishers of Toronto, and an author in Ottawa, signed an which L. undertook to write the life of the Count Frontenac for a work entitled "Makers of Canada,"
in course of publication by
& the latter agreed to publish the work and pay L. $500 on publication and a like sum when the second edition was issued.
This contract was carried out and the publishers then proposed that L.
should write on the same terms, the life of Sir John Macdonald, for which that of William Lyon Mackenzie was afterwards substituted.
L. prepared the latter work and forwarded the manuscript to the publishers, who, although they had paid him in full for it in advance, refused to publish it, as being unsuitable to included in "The Makers of L. then tendered to 11. & the amount paid him and demanded a return of the manuscript, which was refused, & claiming it as their In an action L. for possession of his manuscript,-Held, af- Ont. L.R. 594), and Anglin JJ. dissenting, that he was entitled to its return.-Held, per Fitzpatrick that the property in the manustript (or what is termed literary property) has a special character, distinct from that of other articles of commerce; that the contract between the parties must interpreted with regard to such special character of the subject-matter; that it implies an agreement to publish if accepted; and when rejected the author was entitled to treat the contract as rescinded and to a return of his property.-Held, per Davies and Duff JJ., that there was an express contract for publication and an implied agreement that the manuscript was to returned if publication should become impracticable for such reasons as those given the publishers.-Held, per Duff J., that the publishers, until publication, could treated as having possession the manuscript for that purpose and, that purpose failing, there was a resulting trust in favour of the author. 2-Vendor and purchaser-Agreement to convey lands - Consideration-Price money covery for "money had and received"- Sale or exchange-Damages.] sold his interest in certain lands to W. for a consideration, fixed at $19,000, of which $16,000 was to satisfied the conveyance of other lands, alleged to owned W. W. then executed a written agreement purporting to sell these other lands to for the sum of sixteen thousand dollars, acknowledged then and there to have been received the vendor; bound himself to convey them to the purchaser, with a clear title, within one year from the date of the agreement, and time was stated to be of the essence of the contract. Upon default by the vendor to convey the lands, according to the agreement, the plaintiff sued to recover the as money had and received for which no consideration had been given. In his defence, W. contended that the consideration mentioned in the agreement was not actually cash but consisted merely of lands to be conveyed in exchange at a valuation fixed at that amount and, consequently, that the plaintiff could recover only damages to assessed according to the value of the lands which he had failed to convey.-Held, that, in the absence any purpose as the basis of the agreement, the terms writing governed parties mentioned should be regarded as a money to the relief sought.
pealed from (20 Man. R. 562) affirmed.
v. ..............
Title to land - Priority right
Construction statute-Saskatchewan "Land Titles Act,"
Edw.
Edw. VII. 24), the lodging of a caveat in the land titles in which the title to the lands in question is registered, prevents the acquisition of any legal or equitable interest in the lands adverse to or in derogation of the claim of the caveator.-A company, being registered owner of lands under the Act, entered into a written agreement to sell them to P., who assigned his interest the contract to who then agreed to transfer the equitable interest, thus acquired,
Subsequently, without knowledge of A.'s interest, MeK. & acquired a like interest from
A caveat claiming interest in the lands was then lodged in the proper land titles and, without inquiry or actual notice of the registration the caveat, McK. & afterwards obtained the approval the company to the assignment which had been made to them. In an action for specific performance,-Held, per Davies, Idington, Anglin and Brodeur JJ., that, as the purchasers from were on equal terms as to equities, A. had priority in point time at the date when his caveat was lodged; that such priority had been preserved the registration of the caveat, and that the subsequent advantage which would, otherwise, have been secured the company's approval of the assignment to McK. & was postponed to any equitable right which might have to a conveyance.
And, further, per Idington J., that, irrespective of the lodging of the caveat, had prior equity to the subsequent assignees.-The agreement by the company provided that no assignment of the contract should be valid unless it was for the whole of the purchaser's interest and was approved by the company, and also that the assignee should become bound to discharge all the obligations the purchaser towards the company. Until the time the approval of the assignment to McK. and B., none of these conditions had complied with.-Held, per Davies, Idington, Anglin and Brodeur JJ., that the conditions in restriction of such assignments of the original contract could invoked only by the company.-Held, per Duff J., dissenting, that, as the rights of against the company had never become vested in according to the provisions of the contract, he had acquired no enforceable right against the company, the registered owner of the lands, and, consequently, he had no legal interest in them could protected by caveat.-Judgment appealed from Sask. L.R. affirmed, Duff J. dissenting.
McKiLLoP 4-Negligence
- Onus of proof ................
5-Vendor and purchaser - Sale of land-Payment on account of price - Return paid Practice. ...........................
R.S.C., ss. 26a, 226; & 9
Edw. VII., 1................
7-Mortgage perty Act" - Power of Sale - Property Limitation Act," R.S.
COSTS-Appeal-Jurisdiction-Matter in controversy
Damning watercourse
Objection to jurisdiction-Practice ............................
CRIMINAL LAW-Evidence - Verdict.]
Evidence making a primd facie case for the Crown in a criminal prosecution, if unanswered and believed by the jury, is sufficient to support a conviction the person accused.
GInviN v.
LANDS-Construction of sta- "Alberta Local Improvement
Assessment and taxation-Constitutional subsidy
Interests private owner....................
DAMAGES-Fishery and games leases- Use and occupa- Works to facilitate lumbering operations
Penning waters out of tract of transmission - Damages-Continued.
Jurisdiction-Matter in controversy
Flooding of lands - Servitude-Objection to jurisdiction-Practice - ....... 3-Vendor and purchaser-Agreement to convey lands - Consideration-Price covery for "money had and received"- Sale or exchange .................
DEATH
DOMICILE - Constitutional law-Con- Legislative juris- Extraterrritorial movables - Decedent domiciled within province . ............
DUTIES-Constitutional law-Construc- Legislative jurisdic- "Direct taxation within the province"
Extra-territorial movables - Decedent domiciled within province ..................
Negligence-Dangerous work-Dangerous materials
Risk employment Warnings instructions - Employer's liability
"Railway Act," R.S.C. s. 306-"Construction and operation" railway.] Where instructions and warning are necessary to enable employees, in circumstances involving danger, to appreciate protect themselves against the perils incident to the work in which they are engaged, it is the duty of the employer to take reasonable care to that such instructions and warnings are given.
The employer may delegate that duty to competent persons, but, where compensation is sought for injuries sustained an employee owing to neglect to give such instructions and Employer and Employee-Continued.
warning, the onus rests upon the employer to shew that the duty was delegated to a person qualified to discharge it or that other adequate provision was made to ensure protection against unnecessary risk to the employees.
failure of the employer to take reasonable care in the appointment of a properly qualified superintendent, to whom the duty of selecting persons to employed is entrusted, amounts to negligence involving liability for damages sustained in consequence of the acts of incompetent servants.
Young v. Hoffman Manufacturing ( applied; judgment appealed from
Man. R. affirmed.-In this case, as the risk incideit to the employment an incompetent foreman was not one of those which are assumed by an employee, the plaintiff was entitled to recover damages at common law.
Judgment appealed from (21 Man.
reversed.-The limitation of one year, in respect of actions to recover compensation for injuries sustained "by reason the construction or operation" of railways, provided section of the relates only to injuries sustained in the actual construction or operation of a railway; it does not apply to cases preparing materials which may necessary for the construction of their rail- Robinson ([1911] applied;
Man. R.
Privy Council refused, 20 March,
2-Negligence
Fellow servant proof.
Issue shares - Authority to sign certificate ment and taxes - Meetings of council- Estoppel-Continued.
of meeting arrears of taxes cence
............. Sea EVIDENCE-Criminal law - Verdict.] Evidence making a primd facie case for the Crown in a criminal prosecution, unanswered and believed by the jury, sufficient to support a conviction of the 2-Company-Issue of shares-Authority to sign certificate - Evidence.] Held, per Fitzpatrick C.J. and Duff J., that where statute and the by-laws of a joint-stock company certain of its officers are empowered to sign stock certificates, and they sign a certificate under seal in favour of person who has agreed to change his position on receipt of the shares it represents and who is declared therein to the holder of such shares the company is estopped from denying that it was issued by its authority, even if one of the officers signing it was acting fraudulently for his own purposes in doing per Anglin J., that the certificate is only primd facie evidence of the statements therein and such evidence may be rebutted shewing that it was issued without authority.
In this case, however, Davies and Idington JJ. contra, the company failed to make such proof.-Judgment Court Idington JJ. dissenting. 3-Negligence
Onus proof ..........................
4-Chattel mortgage - Proceedings taken in good faith........... 302 Evidence-Continued.
Complaints to Railway Commissioners - Agreement for special rates
-Unjust discrimination .........
6-Negligence - Fatal injuries
Statutory signals
Highway crossing eye-witness
Reasonable inference- Balance of probabilities - Findings
7-Promissory note blank - Discount-Principal and agent
Condition as use note fde holder - "Bills of Exchange Act,"
R.S.C., ss. 32-Findings of trial court ....................
EXCHANGE-Vendor and purchaser - Agreement to convey lands - Considera- Breach tract - Recovery for "money had and
Sale or
FISHERIES-Construction of statute- Personal servitude tate lumbering operations-Driving logs
Storaoe dams
Penning waters out of track of transmission - Demolitionof
LAWS-Construction of statute- Personal servitude tate lumbering operations-Driving logs
Penning waters out of track of transmission - The lumber company are holders of timber limits in the Townships of Ixworth, Chapais and Lafont- Game Laws-Continued.
aine, in the counties of L'Islet and Kamouraska, and, assuming to act under the authority of certain statutes of the Province of Quebec
(now consolidated articles 7295 to 7300, ) erected dams at the outlet the Lakes Ste. Anne into the River Ouelle to form a reservoir, by penning back the waters these lakes, for the purpose of augmenting the natural of the River Ouelle during seasons when its waters had abated to facilitate the transmission timber cut on their limits below that point and delivering it at their saw-mill further down stream. They were owners of the lands on both sides of the stream at the place where the dams were erected.
The fish and game club were lessees of fishery and hunting privileges under a lease issued in virtue of the "Quebec Fisheries Act," and the Game Laws" which had been in force for a number of years prior to the erection of the dams but which -was surrendered subsequent to their construction and a new lease granted to the club in its stead by the Crown.
The leases cover the territory included in the above mentioned townships and the timber limits therein held by the lumber company.
The action was brought the club to recover damages for injuries casioned to their rights as lessees of the fishery and hunting rights in consequence of the manner in which the dams were used and lumbering operations carried on in the river the lumber company.-Held
(Fitzpatrick C.J. dissenting).-That the plaintiffs have a status to maintain an action for injuries to their rights as fishing and hunting licensees and that the judgment at the trial (Q.R. 36 for such damages should restored.-Per Fitzpatrick C.J. and Girouard and Anglin JJ. respondents had the right to construct and maintain the dam in question and to use it to facilitate the flotation of logs, etc., in the lower reaches of the River Ouelle.-Per Idington J. (Davies J. dubitante).-This right exists only respect the streams or portions them down which logs, etc., are actually driven the timber licensees and does not extend to storage dams upon upper reaches and tributary waters not themselves used for the flotation of timber.-Per Duff J.-The powers conferred I the statute must exercised reason- Game Laws-Continued.
ably.
In this case, the impounding of the stream's sources, miles beyond any part of it on which any timber could expected to pass, is not within the contemplation of the statute and would not be a reasonable exercise of the powers intended to conferred.-Per Fitzpatrick C.J. and Girouard and Duff JJ.
(agreeing with the court below
(Q.R.
K.B. ).-The right to aid the user of floatable streams by artificial means authorized by article 7299 the
Revised Statutes of Quebec may exercised at all seasons of the year.
-Per Davies, Idington and Anglin JJ.
-Articles
7298 and 7299 of the Revised
Statutes of Quebec must read together and, while the right to use floatable streams in their natural state for the flotation of timber exists at all times and in all seasons, the right to aid such user the artificial means authorized article 7299 may exercised only during the periods mentionin article viz., during the
Spring, Summer and Autumn freshets.
Curian, Fitzpatrick C.J. contra.
This right, whatever its extent or duration, is exercisable only subject to the condition that the person enjoying it shall make compensation to others holding rights such as the appellants enjoy; and, having regard to the circumstances of this case and the legislation governing it, the question priority the acquisition the respective rights the parties is of no consequence.
-Leave to appeal to the Privy Council was refused, 15th May,
Repair sidewalks
Statutory duty
Civil liabil- Constructioa
V. s. 219 (B.C.).] Where a guilty gent default nonfeasance of the statutory duty imposed upon it to keep its highways in good repair, and adequate means have been provided by statute for the purpose of enabling it to perform its obligations in that respect
(v.g., Vict. [B.C.]), persons injuries
Highways-Continued.
omission, may maintain civil actions against the corporation to recover pensation in damages, although no such right of action has been expressly provided for statute, unless something in the statute itself or in the circumstances in which it was enacted justifies the inference that no such right of action was to conferred.-Coe v. Wise & 440; L.R. 1 Ifersey Docks Trustees v. Gibbs (L.R. 1 H.L.
Pictou v. Geldert ([1893]
Municipal Council of Sydney v. Bourke ([1895]
433); Sanitary Commissioners of Gibraltar v. Orfila App. Cas. 400) ; Cowley v. Newmarket Local Board ([LS2] ; Campbell v. City of Saint John (26 Can. S.C.R. 1); and City of Montreal v. Mulcair Can. S.C.R. 458)
distinguished.-Judgaffirmed.-Per Fitzpatrick C.J. and Duff the inhabitants of parishes, England, through which highways passed were responsible for their repair has no application in the Province of British Columbia.
Closing "Passage ing into force - Time for appealing- "Winnipeg City Charter" - See 2. - Electric light and Immovable outside boundaries - Purchase on credit Promissory notes
By-law--Loans Approval of ratepayers - Special rate Construction sta- (Que.) Edw. VII., 95-R.S. tit. XI.-"Cities and Towns INDUSTRIAL IMPROVEMENTS. JURY-Negligence - Fatal injuries
Statutory signals
Highway crossing
Absence of eye-witness - Reasonable in- Jury-Continued.
ference of probabilities - Findings sessment and taxes
Meetings of counof business outside limits of municipal- Revision assessment rolls-By-laws-Sale for arrears of taxes - Construction of sta- Acquiescence - .
.......................
LEASE-Construction of statute-Fishery and game leases - Personal servitude tate lumbering operations-Driving logs
Penning back waters out of track of transmission - LEGISLATION-Construction of statute
"Alberta Local Improvement Act"-Assessment and taxation - Constitutional law
Crown lands - Interests of private
2-Constitutional law - Legislative jurisdiction- "Direct taxation within the province"- - Extra-territorial movables - Decedent domiciled within
LIMITATION ACTION-Negligence- Dangerous works and materials - Warnings and instructions
Employers' liability
"Railway Act," R.S.C., s. - "Construction and operation of railway."] The limitation of one year, in respect of actions to recover compensation for injuries sustained reason of the construction or operation"
Limitation of Action-Continued. of railways, provided section of the "Railway Act"
relates only to injuries sustained in the actual construction or operation of a railway; it does not apply to cases a railway company for procuring or preparing materials which may be necesary for the construction of their railv. Robinson ( appealed from Man. R. (Leave to appeal to refused,
20th ................
2-Sale of lands for taxes enacted without jurisdiction - Sessions of council outside municipal boundaries statute.] Per Duff and Anglin JJ., Brodeur J., contra.-The provisions of the British Columbia "Municipal Act, (R.S.B.C., 86 ), have no application to invalid by-laws enacted by municipal councils on occasions when they could not perform legislative functions. .....................
3-Possession by mortgagee - Property Act," R.S.M., s. 75-"Real Property Limitation Act," R.S.M., s. 20-Construction of Statute.] Per Davies, Duff and Brodeur JJ., affirming the judgment ap- Man. R. 522).-The equitable rights of mortgagors in lands subject to the operation of the "Real Property Act," R.S.M., ch. and of persons claiming through them, are protected by the provisions of the 75th section of that statute denying the acquisition of title adverse to or in derogation of that of the registered owner of such lands length of possession only; the limitation provided by section of the "Real Property Limitation Act" ch. in favour mortgagees, has no application to lands after they have been brought un- Limitation of Action-Continued.
der the "Real Property Act."
LITERARY PROPERTY-Contract-Literary work - Obligation to publish.] In & publishers of Toronto, and an author in Ottawa, signed an agreement, which L. undertook to write the life the Count de Frontenac for work entitled "Makers of Canada," in course publication & Co.; the latter agreed to publish the work and pay L.
on publication and a like sum when the second edition was issued. This contract was carried out and the publishers then proposed that L. should write the same terms, the life of Sir
John Macdonald, for which that
William Lyon Mackenzie was afterwards substituted.
L. prepared the latter work and forwarded the manuscript to the publishers, who, although they had paid him in full for it in advance, refused to publish it, as being unsuitable to included in "The Makers Canada."
L. then tendered to & the amount paid him and demanded a return of the manuscript, which was refused, & claiming it as their
In an action L. for possession his manuscript,-Held, affirming the judgment of the Court peal Ont. L.R. 594), Idington and
Anglin JJ dissenting, that he was titled to its return.-Held, per Fitzpatrick that the property in the manuscript (or what is termed literary property) has a special character, distinct from that of other articles of commerce;
that the contract between the parties must interpreted with regard to such special character of the subject-matter;
that it implies an agreement to publish if accepted;
when rejected author was entitled to treat the tract as rescinded and to a return his property.-Held, per Davies and Duff
JJ., that there was an express contract for publication and an implied agreement that the manuscript was to returned if publication should become impracticable for such reasons as those given the publishers.-Held, per Duff
J., that the publishers, until publication, could treated as having possession the manuscript for that purpose and,
Literary Property-Continued.
that purpose failing, there was resulting trust in favour author. & ........ LUMBERING - Fishery and game leases - Use and occupation - Action en complainte - Renewed leases Works facilitate bering operations - Storage dams-Penning back waters out of tract of transmission Injury preserves
Demolition works. MORTGAGE-Manitoba "Real Property Act"-Power of sale-Special covenant Statutory supervision-Registered title - Equitable rights - Possession mortgagee action-Construction of statute, R.S.M., s. 75-"Real Property Limitation Act," R.S.C. s. 20.] In respect of lands subject to the operation of the "Real Property Act," R.S.M., mortgagees have no registered interest, but merely obtain powers of disposing thereof; these powers do not vest as incidental to the estate mortgaged, but are efficacious only virtue of the statute.
Where the mortgage stipulates for a power of sale, default, without notice, and contains no proviso dispensing with the official supervision required by the statute, a sale the mortgagee, purporting to made under that power, without compliance with the requirements of section the Act or an order of the court, cannot operate to extinguish the registered title of the mortgagor.-Judgment appealed from Man. R. affirmed, Idington and Anglin JJ. dissenting.-Per Davies, Duff and Brodeur JJ., affirming the judgment appealed from (20 Man. R. 522).-The registered title of mortgagors in lands subject to the operation the "Real
Property Act," R.S.M., and of persons claiming through them, are protected the provisions of the 75th section of that statute denying the acquisition of title adverse to or in derogation of that of the registered owner such lands by length of possession only; the limitation provided section of the "Real Property Limitation Act,"
R.S.M., Mortgage-Continued.
in favour of mortgagees, has no application to lands after they have I been brought under the "Real Property
.............................
2--Chattel mortgage - Proceedings taken in good faith..... 302
MUNICIPAL CORPORATION-Highways
-uisance
- Repair of sidewalks feasance
Civil liability
V. s. 219 (B.C.).]
Where a municipal corporation is guilty negligent default by nonfeasance of the statutory duty imposed upon it to keep its highways in good repair, and adequate means have been provided statute for the purpose of enabling it to perform its obligations in that respect (v.g.,
Vict. [B.C.]), persons suffering injuries in consequence such omission, may maintain civil actions against the corporation to recover compensation I in damages, although no such right of action has been expressly provided for statute, unless something in the statute itself or in the circumstances which it was enacted justifies the inference that no such right of action was to conferred-Coe v. Wise B. &
440; L.R. 1 and Mersey
Docks Trustees Gibbs (L.R. 1 I.L.
Municipality of Picton
Geldert ([1893]
524); Municipal
Council of Sydney v. Bourke ([1895]
433) ; Sanitary Commissioners
Gibraltar Orfila App. Cas. 400);
Cowley
Newmarket
Local Board
([1892] ; Campbell City
Saint John Can. S.C.R. 1); and
City of Montreal Mulcair Can.
S.C.R. 458), distinguished. -Judgment appealed from
B.C. Rep. affirmed.-Per Fitzpatrick C.J. and Duff which the inhabitants of parishes, in
England, through passed were responsible for their repair has no application in the Province
British Columbia.
.-- Closing streets-"Passage of bylaw" - Coming into force of by-law-- Time for appealing-3 & Edw. VII. (Man.) -"Winnipeg
City Charter" of statute.] A municipal by-law for the diversion and closing of certain highways and the transfer of the land to a railway company provided that it should "come into force and effect" on the execution of a supplementary agreement between the municipal corporation and a railway company "duly ratified council"; it also determined the classes of persons and property entitled to compensation consequence of being injuriously affected the diversion and closing of The statute (3 & Edw. VII. sub-sec.
conferring these powers, gave persons dissatiswith the determination the right to appeal to a judge "within ten days after the passage of the by-law." Another was which the first by-law was "ratified and confirmed declared now in force."
The defendants, who had been excluded class persons receive compensation, appealed to a judge, under tion of the statute above referred to within ten days after the enactment the second by-law.-Held, that the terms "within ten days after the passage the by-law" in the statute had reference to the date when the by-law affecting the streets and determining the classes entitled to compensation became effective; that the first by-law did not into force and effect in such a manner as to injuriously affect the fendants until it was ratified and confirmed by the subsequent by-law, and, consequently, defendants' came within the time limited by the statute.-Judgment appealed from Man. R. affirmed.
v. BOciK.
.......
3-Assessment and taxation - Meetings of council - Transacting business outside limits vision of assessment rolls - Sale for arrears of taxes - V. c. s. (a) (B.C.)-R.S.B.C.,
144-Statutory relief
Per Fitzpatrick C.J. and Idington and
Anglin JJ.-Prior to the amendment the British Columbia "Municipal Act, the "Municipal Amendment
Act, Vict. (B.C.) ch.
municipal councils subject to those statutes had no power to hold meetings for the transaction any administrative, legislative or judicial business of the municipal corporation at a place outside of the territorial boundaries of the municipality.-Per Fitzpatrick C.J.
and Idington, Duff and Anglin JJ.- Courts of revision organized under the
British
Columbia municipal statutes, have no power to exercise their functions as such except at meetings held within the territorial limits of the municipality where the property, described in the assessment rolls to revised them, is situate.-Section
"Municipal Amendment Act, 1894," inserted in the "Municipal Act,
(B.C.), a new provision, section (a), as follows: "All meetings of a municipal council shall take place within the limits the municipality, except when the council have unanimously resolved that it would more convenient to hold such meetings, or some of them, outside of the limits of the municipality."-Held, Brodeur J. dissenting, that there was no proof such a unanimous resolution as the statute requires.-The council of the respondent municipality, without any formal resolution as provided the amended statute, held its meetings during several years at -a place outside the limits of the municipality, and organized courts of revision there.
These courts held all their meetings at the same place as the council and assumed to revise the municipal assessment rolls at those meetings.
The council approved the rolls so revised and enacted by-laws, from year to year, levying rates and authorizing the collection of taxes on the lands mentioned in the rolls, and, after notice as provided the statutes, sold lands so assessed and alleged to in arrear for the taxes imposed.-Held, Brodeur J. dissenting, that the assessment rolls were invalid, that the by-laws levying the rates and authorizing the collection of taxes mentioned therein were null void, and that the sales for alleged arrears were illegal of no effect.-Per Duff and Anglin JJ., Brodeur J. contra.-The default in payment taxes, the appellant, and his subsequent inaction and silence, while aware the fact that his lands had been sold for alleged arrears taxes, did not disentitle him from taking advantage of the statutory procedure respecting the contestation of sales for arrears taxes either by estoppel, quiescence or laches. The provisions of the "Municipal Act, (now R.S.B.C. see. (2),) have no application to invalid by-laws enacted municipal councils on occasions when they could not perform legislative functions.-The judgment appealed from was reversed, Brodeur J. dissenting, on the ground that, as the council had held its first meeting in each year within the limits of the municipality and adjourned for the purpose holding its next meetings at the place outside of the municipality where all other meetings were held, the by-laws approving of the assessment rolls and those levying rates and authorizing the collection of taxes were valid and the sale of the lands in question for arrears of such taxes was legal and effective. ......... Electric light Immovable outside boundaries - Purchase credit
Promissory notes
Hypotheo Approval ratepayers
Special rate
- Construction of statute-(Que.) 8 Edw. VII. 95-R.S.Q., tit. XI.of the Town of Shawinigan Falls, acting under a special Act of incorporation, 8 Edw. VII. and the "Cities and Towns Act," Title XI, enacted a by-law authorizing the purchase the municipality of the appellants' electric light and power plant, which was situated outside the municipal boundaries, but within twenty miles thereof, for the purpose of establishing a system of electric lighting and waterworks within the municipality.
The price the property was to paid in part annual instalments, to secured the promissory notes the municipal corporation, and the balance, being the amount of a subsisting hypothee and interest thereon, was to satisfied the corporation assuming the hypothecary obligations.
Previous to enactment the by-law had not been approved by a vote of the ratepayers, and it did not impose a special rate to meet interest and establish a sinking-fund, as required article 5668
Held, affirming the judgment appealed from, (Q.R. K.B. 546), Anglin J. dissenting, that the by-law was invalid.- Held, per Davies, Idington and Duff JJ.,.
that the municipal corporation had no power to establish such works outside the boundaries of the municipality. Per
Anglin
J. dissenting, that in view the situation of the electric and power plant, the peculiar circumstances the case, and the special provisions the Act incorporating the town, it was competent for the municipal corporation to acquire the property and to establish and maintain the works in question.-Per
Davies J., Anglin J. contra, that the law was invalid for want provision, either in itself or in another by-law contemporaneously enacted, fixing the necessary rate for the purpose of meeting interest and establishing a sinkingfund, as required article 5668
1909.-Per Idington J., Anglin J.
tra, that the by-law was one which required the approval of the ratepayers the municipality, as provided article
5783 respecting loans, and, as their assent had not been obtained prior to enactment the by-law was invalid.-Per Anglin J.-The statutory obligation in respect of the imposition of a special rate to meet interest and establish a sinking-fund would discharged the levy of the necessary rates for those purposes from year to year until the debt to incurred was extinguished.
HYDRO- CO...................
NEGLIGENCE-Municipal corporation- Repair sidewalks
"Vancouver City Charter"-64
V. s. 219 (B.C.).] Where a municipal corporation is guilty of negligent default by nonfeasance of the statutory duty imposed upon it to keep its highways in good repair, and adequate means have been provided statute for the obligations in that respect
(e.g., Vict. 54 [B.C.]), persons suffering injuries sion, may maintain civil actions against the corporation to recover compensation in damages, although no such right action has been expressly provided statute, unless something in the statute itself or in the circumstances which it was enacted justifies the inference that no such right of action was to conferred-Coe v. Wise B. & 440; L.R. and Mersey Docks Trustees V. Gibbs (L.R. 1 H.L. applied.
Municipality of Pictou Geldert
([1893]
Council of Sydney v. Bourke ([1895] ; Sanitary Commissioners Gibraltar v. Orfila App. Cas. 400); Cowley
Newmarket
Local Board ([1892] ; Campbell City Saint John
Can. S.C.R. 1); and City of Montreal v. Mulcair Can. distinguished.-Judgment appealed from B.C. Rep. firmed.-Per Fitzpatrick C.J. and Duff which the inhabitants parishes, England, through passed were responsible for their repair has no application in the Province British
2-Carriers - Operation of railway Gratuitous passenger
Limitation liability - Employer and employee-Fellow-servant proof.]
The plaintiff's husband was an employee engaged as a mechanic in the company's workshops and was travelling thither to his work on one of the ger, without payment of fare.
A freight car became detached from a train, some distance ahead of the passenger car and proceeding in the same direction; it ran the passenger car and the plaintiff's husband was killed.
The manner in which the freight car became detached was not shewn.
On the body of deceased there was found a permit or "pass," which was not produced, and there was no evidence to shew any conditions in it, nor over what portion the company's lines nor for what purposes it was to honoured.
the close the plaintiff's case the defendants adduced no evidence whatever, and the jury found that the company was at fault, owing to a defective system of operation their trains, and assessed damages, at common law, for which judgment was entered for the plaintiff.-Held, that there was a presumption that deceased was lawfully the passenger car and, in the exercise their business as mon carriers passengers, the company were, therefore, obliged to use a high degree of care in order to avoid injury being caused to him through negligence;
that there was nothing in the evidence to shew that deceased occupied the position of a fellow-servant with the employees engaged in the operation of the trains which were in collision; and that, in the absence of evidence shewing any agreement, empress or implied, or relationship between the company and deceased which would exclude or limit liability, the plaintiff was entitled to recover damages at common law.-Judg- Nightkngale Union liery Can. S.C.R.
distinguished.
V. ......
Employer and employee-Dangerous work-Dangerous materials-Risk of employment-Warnings and instructions- Employer's liability-Damages-Limitation of action - Construction of sta- "Railway Act," R.S.C.
s. 306-"Construction and operation" of railway.] Where instructions and warning are necessary to enable employees, in circumstances involving danger, to appreciate and protect themselves against the perils incident to the work in which they are engaged, it the duty of the employer to take reasonable care to that such instructions and warnings are given. The ployer may delegate that duty to competent persons, but, where compensation is sought for injuries sustained employee owing to neglect to give such instructions and warning, the onus rests upon the employer to shew that the duty was delegated to person qualito discharge it or that other adequate provision was made to ensure protection against unnecessary risk to the employees.
The failure the employer to take reasonable care in the appointment a properly qualified superintendent, to whom the duty of selecting persons to be employed is entrusted, amounts to negligence involving liability for damages sustained in consequence of the acts incompetent servants.
Young v. Hoffman Manufactur- K.B. 646) applied; Man. k. affirmed.-In this case, as the risk incident to the employment of an incompetent foreman was not one of those which are assumed an employee, the plaintiff was entitled to recover damages at common law.
pealed from -Man. R. reversed. limitation of one year, in respect of actions to recover compensation injuries sustained reason of the construction or operation" of railways, provided section of the "Railway Act" relates only to injuries sustained in the actual construction or operation of a railway; does not apply to cases where injuries have been sustained employees engaged in works undertaken a railway for procuring or preparing materials which may necessary for the construction of their railway. Canadian Northern Railway v. Robinson ([1911]
applied; judgment appealed from 'Man. R. (Leave to appeal to Privy refused, 20th
.......................
4-Operation of railway-Death from contact with train - Absence of eyewitness - No warning at crossing - Findings of jury
Reasonable inferences - Balance of probabilities.] About on a December afternoon, left his place of employment to go home. An hour later his body was found some yards east of a crossing of the Grand Trunk Railway, nearly opposite his house.
There was no witness of the accident, but it was shewn on the trial of an action his widow and children, that shortly after he was last seen an express train and a passenger train had passed each other a little east of the crossing, and there was evidence shewing that the latter train had not given the statutory signals when approaching the crossing.
The jury found that was killed the passenger train, and that his death was due to the negligence the latter in failing to give such warnings.
This finding was upheld the Court Appeal.-Held, that the jury were justified in considering the balance of probabilities and drawing the inference from the circumstances proved, that the death of was caused such
NOTICE-Partnership - Third party
Banks and banking
Negotiable instrument - 2-Sale
Proceedings taken in good faith ...........
3-Vendor and purchaser - Sale of land-Payment on account of price - Cancella- Return paid
Rescission
4-Title to land - Priority right
Construction of statute-Saskatchewan "Land Titles Act," Edo.
Assignment contract
- ........
5-ortgage perty
Statutory supervision-Registered title - Equitable rights-Possession mortgagee - R.S.M., s. - "Real Property Act," R.S.M.,
20 ................
............
6 18
Repair sidewalks duty
- Nuisance-Continued.
"Vancouver City Charter.".. ..................
PARTNERSHIP-Principal and agent- Banks and banking
Negotiable instrument member of the firm of R. M. & 0., engaged on a contract for railway construction in Quebec, shortly before its completion went to Ontario, leaving his partners to finish the work, collect any balance due, pay the liabilities and divide the balance among them. M. and finished the work and received and over, went to Toronto and formed a new partnership of which R. was not a member.
Having undertaken another contract in North Ontario, they arranged with the head-office of the Imperial Bank to open an account with its branch at New Liskeard and the cheque payable to R. 1.
& was cashed at the branch in Toronto and, instructions to the New Liskeard branch, was placed the credit of the new firm there and the whole sum was eventually drawn out the latter firm. R., later, brought an action against -f. and for windup the affairs of their co-partnership and, pending that action took another against M1. and and the bank claiming that the latter should pay the amount the cheque with interest into court subject to further order.-Held, per Fitzpatrick C.J. and Davies J., af- Ont. L.R. 584), and Anglin JJ. dissenting, that and had acted within their authority from R. obtaining cash for the cheque; that there was nothing to shew that they had misapplied the proceeds or intended to do so by their dealing with the cheque; that in any case there was no notice to the bank any intention to misapply the funds and nothing to put them on inquiry; and that the action against against the bank must fail. -Per Duff J.-The evidence establishes that and had authority to convert the cheque into an instrument transferable delivery only and that was acquired by the bank in good faith in the ordinary course of business. The bank, therefore, obtained a good title to the cheque and its proceeds as against the appellant. Ross PAYMENT-Vendor and purchaser - Condition of agreement - Payment account price cellation
Broker
Stock carried margin - Right to pledge.] A broker who carries stock on margin for a customer has a right to pledge it for his own purposes to the extent amount he has advanced.-If the broker pledges such stock as security for an amount greater than his advances, whereby he makes no profit and the client suffers no loss, he is not liable for a conversion provided that on mand his client delivers to the latter the number of shares ordered and which has been carrying foi him.
Anglin J. (dissenting)
.-Per Duff J.-The broker is not liable under the above conditions if he pledges the stock lieving that his arrangement with his client authorized.-Per Duff J.-The dealings complained of were in accordance with the ordinary practice of brokers in Toronto in respect to stocks ing carried "on margin," and the proper inference from all the evidence was that such dealings were authorized the arrangement between the parties.- Per Anglin J.-The broker must at all times in a position to hand over the stock to his client and if, as the result his pledging it, he puts himself in a position where he may not able to he is guilty of conversion.-Judgment of the Court of Appeal (20 Ont.
L.R. 611), affirming that the Divisional Court
Ont. L.R.
firmed. Conmee The Securities Holddistinguished.
(Leave to appeal to Privy
Council was refused,
13th December,
POSSESSION-Construction of statutecupation en complainte-Renewed leases-Priortate lumbering operations - Penning waters out of track of transmission- Possession-Continued.
2-Mortgage perty
R..M., s. "Real Property Limitation Act," R.S. Appeals from Board Railway Commissioners - References- Form of order by Supreme Court Canada.] On motion for directions as to the settlement of the minutes of the judgment of the Supreme Court of Canada on an appeal under section 56 of "The Railway Act," by leave of the Board, questions referred, court directed that the registrar should certify the opinion of the court in answer to the question submitted. ............... Special leave - "Supreme Court Act," R.S.C., Interests involved
"Alberta Local Improvement Act," - Assessment and taxation
Matter controversy - Damming watercourse
Servitude
Objection juris- 4-Vendor and purchaser land sold - Payment on account-Condition agreement cellation - Return of money paid - Form of action ...... 5-Promissory note blank
Discount
Condition as to use of note- Bond fide holder - "Bills of Exchange Practice-Continued.
Act," R.S.C., ss.
Findings of fact .................
PRINCIPAL AGENT-Partnership
Banks and banking
Negotiable instrument member of the firm of R. & engaged on a contract for railway construction in Quebec, shortly before its completion went to Ontario, leaving his partners to finish the work, collect any balance due, pay the liabilities and divide the balance among them. and finished the work and received
000 and over, went ' to Toronto and formed a new partnership which R.
was not a member.
Having undertaken another contract in North Ontario, they arranged with the head-office of the Imperial Bank to open an account with its branch at New Liskeard and the cheque payable to R. & was cashed at the branch in Toronto and, by instructions to the New Liskeard branch, was placed the credit of the new firm there and the whole sum was eventually drawn out the latter firm. R., later, brought an action against A. and for winding up the affairs of their co-partnership and, pending that action took another against and and the bank claiming that the latter should pay the amount of the cheque with interest into court subject to further order.-Held, per Fitzpatrick C.J. and Davies J., af- Appeal Ont. L.R. 584), Idington and
Anglin JJ. (dissenting)
, that and had acted within their authority from
R.' obtaining cash for the cheque;
that there was nothing to shew that they, had misapplied the proceeds or intended to their dealing with the cheque; that in any case there was no notice to the bank of any intention to misapply the funds and nothing to put them on inquiry; and that the action against the bank must fail.-Per Duff
J.-The evidence establishes that and had authority to convert the cheque into an instrument transferable livery only and that it was acquired the bank in good faith in the ordinary course business.
The bank, therefore, obtained a good title to the cheque and its proceeds as against the appellant.
Principal and Agent-Continued. note - Signature to blank note
Authority dition holder
Bills Exchange Act, ss. and 32.] W., residing at Newmarket, owned property Port Arthur and signed some promissory note forms which he sent to an agent at the latter place to be used under certain circumstances for making repairs to such property.
The agent filled in one the blank notes and used it for his own purposes.
In an action the holder W. swore, and the trial judge found as a fact, that the notes were not to be used until he had been notified and authorized their use. He also found that the circumstances attending the discount of the note by the agent were such as to put the holder inquiry as to the latter's authority. The tirst finding was affirmed by the Court of Appeal.-Held, affirming the judgment of the Court of Appeal (24 Ont. L.R. 122),
Fitzpatrick C.J. dubitante, that sees. and of the "Bills of Exchange Act" did not apply and the holder could not recover.-Held, per Davies and Anglin JJ.-The finding of the trial judge that the circumstances never arose upon which the agent had authority to use the note was not clearly wrong as to justify a second appellate court setting it aside.-Held, per Idington J. finding of the trial judge that the holder was put on inquiry as to the agent's authority was justified by the evidence and bars the right to recover. per Duff J.-The evidence tablishes that the agent had no authority to use the note.
Literary gation to publish ..................
RAILWAY S-Construction of statute - Railtoay aid terests of private owner - Dominion statute, Vict. authorized the granting of aid for the construction of railway a subsidy Crown lands, and, by section it was declared that such grants should be
"free grants" subject only to the payment, on the issue of patents therefor, of the costs of survey and incidental expenses, at the rate of ten cents per acre.
Tne lands question formed part the land-subsidy, earned the railway company and reserved and apart for that purpose by order-in-council, and had been conveyed poll to the appellants by the railway company prior to the issue of a Crown
While still unpatented, these lands had been rated for taxes and condemned for arrears of taxes under the statute of Alberta, 7 Edw. VII.
-Held, that the interest of the appellants in the said lands was subject to taxation and liable to be dealt with under the provincial statute, although letters patent of grant thereof the
Crown had not issued.-Held, also, that allotment of these lands as "free grants,"
under the subsidy Act, related only to exemption usual charges respect public by or on behalf
Crown, except the cost of survey, etc., and did exempt appellants' interest therein from taxation under the provisions the provincial statute, although neither the legal estate nor any interest therein remaining in the Crown could liable to taxation.-Judgment
Alta. L.R.
firmed.
Rural Municipality of North
Cypress v. Canadian Pacific Railway Co.
&
.....
2-Negligence
- Onus of proof.] The plaintiff's husband was an employee engaged as a mechanic in the company's workshops and was travelling thither to his work on one the company's passenger cars, as a passenger, without payment fare.
A freight car became detached from a train, some distance ahead the passenger car and proceeding in the same direction; it ran backwards down a grade, collided with the passenger car and the plaintiff's husband was killed. The manner in which the freight car came detached was not shewn. tne body deceased there was found a permit or "pass," which was not produced, and there was no evidence to shew any conditions in it, nor over what portion of the company's lines nor. for what purpose it was to honoured. close of the plaintiff's case the defendants adduced no evidence whatever, and the jury found that the company was at fault, owing to a defective system operation of their trains, and assessed damages, at common law, for which judgment was entered for the plaintiff.-Held, that there was a presumption that deceased was lawfully on the passenger car and, in the exercise their business as common carriers passengers, the company were, therefore, obliged to use a high degree of care in order to avoid injury being caused to him through negligence; that there was nothing in the evidence to shew that deceased occupied the position of a fellow-servant with the employees engaged in the operation of the trains which were in collision; and that, in the absence of evidence shewing any agreement, express or implied, or some relationship between the company and ceased which would exclude or limit liability, the plaintiff was entitled to recover damages at common law.-Judgatirmed.
Nightingale v. Union Colliery v. ..............
Railway Act," R.S.C.. (1906),
315, 318(2), 323-(D.) 1 Edw. VII. 53-(Man.) V. 2;
17; 1 Edw. VII. - Board Commissioners - Complaints Agreement for rates
Unjust discrimination Practice
Form of order on reference.] In virtue of an agreement with the Government of Manitoba, validated statutes of that province and of the Parliament of Canada, the Canadian Northern established special rates for the carriage of freight, etc., to points in Manitoba, and the Canadian Pacific Railway Company reduced its rates, which had been in force prior to the agreement, in order to meet the competition resulting therefrom. The complaint made to the Board or Railway Commissioners for Canada the respondents was, in effect, that as similar proportionate rates were not there was unjust discrimination operating to the prejudice shippers, etc., to and from the western points.
questions submitted for the consideration of the Supreme Court of Canada,- Held, that the facts mentioned are circumstances and conditions, within the meaning of the "Railway Act" to be considered by the Board of Railway Commissioners in determining the question of unjust discrimination in regard to both railways; that such facts and circumstances are not, in law, conclusive the question unjust discrimination, but the effect, if any, to given to them is a question of fact to be considered and decided by the Board in its discretion.
The Montreal Park and
Island Railway v. The City of Montreal
PAcIFIc
................
R.S.C., ss. 26a, 226-(D.) 8 and Edw. VII. s. Notwithsiding has been constructed entitling the railway company to make use it for the purpose of affording shipping facilithan the owners of the land upon which expropriation and compensation, has not the power, on an application under tion 226 of the "Railway Act," (R.S.C.,
37), to order the construction and operation of an extension of such spur or siding as a branch of the railway with which it is connected.
Blackwoods Limited v. The Canadian Northern Railway (44 Can. S.C.R.
applied, Duff J. (dissenting)
.
v. ........
5--'Negligence - - Dangerous works and materials - Warnings and instructions - Employer's liability way Act," R.S.C., 1906, s. "Construction and operation of railway."] The limitation one year, respect of actions to recover compensation for injuries sustained "by reason of the construction or operation" railways, provided by section 306 the "Railway Act"
1906, ch. 37), relates only to injuries sustained in the actual construction or operation a railway; it does not apply to cases preparing materials which may be necessary for the construction of their railway. Canadian Northern Railway Robinson (
739) applied; judgment appealed from Man. R. refused, 20th Negligence - Death from contact with train- Absence of eye-witness - No warning at crossing
Findings jury sonable inferences - Balance of probabilities.] About 5.30 on a December afternoon, left his place of employment to go home.
An hour later his body was found some yards east a crossing the Grand Trunk Railway, nearly opposite his house.
There was no witness of the accident, but it was shewn on the trial of an action his widow and children, that shortly after he was last seen an express train and a passenger train had passed each other a little east of the crossing, and there was evidence shewing that the latter train had not given the statutory signals when approaching the crossing. The jury found that was killed by the passenger train, and that his death was due to the negligence of the latter in tailing to give such warnings. finding was upheld by the Court of Appeal.-Held, that the jury were justiin considering the balance of probabilities and drawing the inference from the circumstances proved, that the death of was caused by such negli- REGISTRY LAWS-Title to land-"Torrens System" - Priority of right-Registration
"Land Titles Act," Edw. VII., c. 24- Equities between purchasers - Assignment contract enforceable against registered owner.
....................
2-Mortgage perty Act"
R.S.M., s.
"Real Property Limitation Act," R.S.M.
s. ...............
RIVERS and occupation tion en complainte - Renewed leasesfacilitate lumbering operations - Driv- Penning back waters out of track of transmission jury preserves molition of works.]
The lumber pany are holders timber limits in the
Townships of Ixworth, Chapais and Lafontaine, in the counties of L'Islet and
Kamouraska, and, assuming to act under the authority of certain statutes the Province of Quebec,
(now consolidated in articles to 7300,
) erected dams at the outlet the Lakes Ste. Anne into the River
Ouelle to form a reservoir, by penning back the waters of these lakes, for the purpose of augmenting the natural of the River Ouelle during seasons when its waters had abated to facilitate the transmission of timber cut on their limits below that point and delivering it at their saw-mill further down stream.
They were owners of the lands on both sides stream at where the dams were erected.
and game club were lessees fishery
Rivers and Streams-Continued. and hunting -privileges under a lease issued in virtue of the "Quebec Fisheries Act," and the "Quebec
Game Laws" which had been in force for a number years prior to the erection of the dams but which was surrendered subsequent to their construction and a new lease granted to the club in its stead the Crown.
The leases cover the territory included in the above mentioned townships and the timber limits therein held by the lumber company. The action was brought by the club to recover damages for injuries occasioned to their rights as lessees of the fishery and hunting rights in consequence manner in which the dams were used and lumbering operations carried on in the river the lumber company.-Held (Fitzpatrick 0.J. dissenting) .- That the plaintiffs have a status to maintain an action for injuries to their rights as fishing and hunting licensees and that the judgment at the trial (Q.R. for such damages should restored.-Per Fitzpatrick 0.J. and Girouard and Anglin JJ.-The respondents had the right to construct and maintain the dam in question and to use it to facilitate the flotation logs, etc., in the lower reaches of the River Ouelle.- Per Idington J. (Davies J. dubitante). right exists only in respect the streams or portions of them down which logs, etc., are actually driven the timber licensees and does not extend to storage dams upon upper reaches and tributary waters not themselves used for the flotation of timber.-Per Duff J.-The powers conferred by the statute must exercised reasonably. this case, the impounding of the stream's sources, miles beyond any part of it on which any timber could expected to pass, is not within the contemplation of the statute and would not a reasonable exercise of the powers intended to conferred.-Per Fitzpatrick C.J. and Girouard and Duff JJ. (agreeing with the court below (Q.R. K.B. 178).-The right to aid the user floatable streams by artificial means authorized by article 7299 of the Revised Statutes of Quebec may be exercised at all seasons of the year. -Per Davies, Idington and Anglin JJ. -Articles
7298 and 7299 of the Revised Statutes of must read together and, while the right to use Rivers and Streams-Continued.
floatable streams in their natural state for the flotation of timber exists at all times and in all seasons, the right to aid such user by the artificial means authorized by article 7299 may be exercised only during the periods mentioned in article 7298, viz., during the
Spring, Summer and Autumn freshets.
Curiam, Fitzpatrick C.J. contra.
right, whatever its extent duration, is exercisable only subject to the condition that the person enjoying it shall make compensation to others holding rights such as the appellants enjoy; and, having regard to the circumstances of this case and the legislation governing it, the question of priority in the acquisition of the respective rights of the parties is of no consequence.
(Leave to appeal to the Privy
Council was refused, 15th May,
CO........................
1atter in controversy - Objection to jurisdiction- Costs.] The plaintiff claimed
$300 (the amount awarded by arbitrators)
for damages in consequence the defendants' dam penning back the water of a stream in such a manner as to his lands; he also asked for the demolition of the dam and an order straining the defendants from thereby causing further injury to his lands.
the judgment appealed from the award was declared irregular, but damages, once for all, were assessed in favour the plaintiff for recourse being reserved to him in respect of any further right of action he might have for the demolition of the dam, etc. an appeal being taken by the defendants the plaintiff did not move to quash, as provided
Supreme Court Rule No. but took objection, in his factum, to the jurisdiction of the Supreme Court Canada to entertain the appeal.-Held, that the only issue on the appeal was in respect of damages assessed at an amount low that limited for appeals from the
Province, of Quebec.
The appeal was, consequently, quashed, but without costs, as objection to the jurisdiction of the court had not been taken by motion provided
Rules
Rivers and Streams-Continued. Price Brothers & Co. v. Tanguay (42 followed.
and purchaser ment to convey lands - -Recovery for "money had and re- Sale or sold his interest in certain lands to W. for a consideration, at $19,000, of which was to satisfied the conveyance other lands, alleged to be owned W. W. then executed a written agreement purporting to sell these other lands to for the sum of sixteen thousand dollars, acknowledged then and there to have received the vendor; bound himself to convey them to the purchaser, with a clear title, within one year from the date of the agreement, and time was stated to the essence of the contract.
Upon default by the vendor to convey the lands, according to the agreement, the plaintiff sued to recover the as money had and received for which no consideration had been given. In his defence, W. contended that the consideration mentioned in the agreement was not actually in cash but consisted merely of lands to conveyed exchange at a valuation fixed at that amount consequently, plaintiff could recover only damages to assessed according to the value the lands which he had failed to convey.-Held, that, in the absence of evidence of any special purpose as the basis of the agreement, the terms of the contract in writing governed the rights the parties, that the consideration mentioned in the agreement should regarded as a price paid in money and, to the relief sought. Judgment appealed from (20 Man. R. 562) affirmed. 2-Chattel
- Proceedings taken in good faith.] To impeach a sale under powers in a chattel mortgage on the ground that an offer to redeem was made prior to the time fixed by the notice of sale, the person entitled to redeem is obliged to shew that the amount due under the Sale-Continued.
mortgage was actually tendered or that the mortgagee was distinctly informed that the mortgagor was then and there ready and willing to pay what was so due and, being thus informed of the intention to redeem, refused to accept payment.-In the exercise of his power sale, a mortgagee of chattels is bound merely to act in good faith and avoid conducting the sale proceedings in a recklessly improvident manner calculated to result in sacrifice of the goods.
per Duff J., he is not obliged
(regardless of his own interests as mortgagee), to take all the measures a prudent man might expected to take selling his own property.-Judgment appealed from reversed, the Chief Justice and Idington J. dissenting.
3-Vendor and purchaser - Payment on account of price cellation
Form of action- Practice.] An agreement for the sale lands acknowledged receipt of account of the price and provided, in the event default in the payment deferred instalments, that the vendor might, on giving a certain notice, declare the agreement null and void and retain the moneys paid by the purchaser.
On default the purchaser to make payments according to the terms of the agreement the vendor served him with a notice for cancellation which incorrectly recited that the contract contained a stipulation for its concellation, in case default, "without notice," and concluded by declaring the contract null and void "in accordance with the terms thereof as above recited."
The vendor, subsequently, refused a tender of the unpaid balance of the price and re-entered into possession of the lands.
an action by the purchaser for specific performance or the return of the amount paid, rescission was not asked for.- Held, that, as the vendor had not given the notice required by the conditions of tne agreement he could not retain the money as forfeited on account of the purchaser's default; that, as the payment had not been as earnest, but account purchaser was entitled
Sale-Continued.
cover it back on the cancellation of the contract; and that, as the belief sought the action could not granted while the contract subsisted, a demand for rescission must necessarily be implied from the plaintiff's claim for the return the money so paid. Literary work Publisher and author - Obligation to publish .............................
5-Municipal corporation ment and taxes - Meetings of council of meeting arrears of taxes - Construction of SERVITUDE-Fishery and game leases- Lumbering operations - Dams occupation. ........................
Matter in controversy - Plooding lands-Damages jection to jurisdiction - SHAREHOLDER-Company law - Issue of shares - Authority to sign certificate SPECIFIC PERFORMANCE-Vendor and purchaser - Condition of agreement- Payment on account turn of money paid - Form of action - STATUTE-Appeal-Special leave-"Supreme Court Act," R.S.C.
s. (c)-Interests involved-Con- "Alberta Local Improvement Act," Edw. VII.
and amendments - "B.N.A. Act,
Vict. (D.)-Assessment and taxation - Interests of private owner - "Real property."] Special leave to appeal from the judgment of the Supreme Court
Alberta Alta. L.R. 446) was granted, under the provisions of section of the "Supreme
Court Act," R.S.C.
because of the magnitude of the interests finvlved.-Provincial legislatures may authorize the taxation of beneficial or equitable interests acquired in lands wherein the Crown, in the right the Dominion of Canadt, holds some interest and the legal estate.
The legislature of a province may provide for the levy and collection of taxes so imposed by the transfer of the interests affected such taxes.-The
Dominion statute, Viet. authorized the granting of aid for the construction of a railway by a subsidy
Crown lands, and, section 2, it was declared that such grants should be
-free grants" subject only to the payment, on the issue of patents therefor, of the costs of survey and incidental expenses, at the rate of ten cents per acre. The lands in question formed part of the land-subsidy earned the railway company and reserved and set apart for that purpose by order-in-council, and had been conveyed deed poll to the appellants by the railway company prior to the issue of a Crown
While still unpatented, these lands had been rated for taxes and condemned for arrears of taxes under the statute of Alberta, Edw. VII.
that the interest of the appellants in the said lands was subject to taxation and liable to be dealt with under the provincial statute, although letters patent of grant thereof the
Crown had not issued.-Held, also, that allotment of these lands as "free grants,"
under the subsidy Act, related only to exemption from the usual charges made in respect of public lands by or behalf of the Crown, except the cost survey, etc., and did not exempt the appellants' interest therein from taxation under the provisions of the provincial statute, although neither the legal estate nor any interest therein remaining in the Crown could be liable to taxation.-Judgment appealed from Alta. L.R. affirmed. Rural Municipality of North Cypress v. Canadian Pacific Railway Can. S.C.R. 550) distinguished. & ........ Closing "Passage ing into force of by-law - Time fotappealing - & 4 Edw. VII. (Man.) - "Winnipeg City Charter"- Construction of statute.] A municipal by-law for the diversion and closing certain highways and the transfer the land to a railway company provided that it should "come into force and effect" on the execution of a supplementary agreement between the municipal corporation a railway "duly ratified by council"; it also termined the classes of persons and property entitled to compensation in consequence of being injuriously affected the diversion and closing of the streets. The statute & 4 Edw. VII. ch. sub-sec.
(1) ), conferring these powers, gave persons dissatisfied with the determination the right to appeal to a judge "within ten days after the passage of the by-law."
Another was subsequently which the first by-law was "ratified and confirmed and declared to now force."
The defendants, who had excluded from the class of persons to receive compensation, a judge, under the section of the statute above referred to within ten days after the enactment the second by-law.- Held, that the terms "within ten days after the passage of the by-law" in the statute had reference to the date when the by-law affecting the streets and termining the classes entitled to pensation became effective; that the first by-law did not come into force and effect in such a manner as to injuriously affect the defendants until it was ratitied and confirmed the subsequent bylaw, ana, consequently, the defendants' appeal came within the time limited the statute.-Judgment appealed from (20 Man. R. 669)
CrrY BocK
Railways ss. (2),
1 Edw. VII. 53-(Man.) V.
2; V. 17; 1 Edw.
In virtue of an agreement with the
Government of Manitoba, validated statutes of that province and of the
Parliament of the Canadian
Northern Railway Company established special rates for the carriage of freight, etc., to points in 'Manitoba, and the
Canadian Pacific Railway Company reduced its rates, which had been in force prior to the agreement, in order to meet competition resulting therefrom.
The complaint made to the Board
Railway Commissioners for Canada the respondents was, in effect, that as similar proportionate rates were not there was unjust discrimination operating to the prejudice of shippers, etc., to and from the western points. On questions submitted for the consideration the Supreme Court of Canada,-Held, that the facts mentioned are circumstances and conditions, within the meaning of the "Railway Act" to be considered the Board of Railway Commissioners in determining the question unjust discrimination in regard to both railways; that such facts and circumstances are not, in law, conclusive of the question of unjust discrimination, but the effect, if any, to given to them a question of fact to considered and decided the Board in its discretion.
The Montreal Park and Island
Railway Co. The City of Montreal
Can. S.C.R. 256).)
struction of statute-"Railway Act," R.
ss. 26a, 226-(D.)
and Edw. VII. s.
Notwithsiding has been constructed entitling the railway company to make use of it for the purpose of affording shipping facilithan the owners of the land upon which expropriation compensation, has an application under ch. to order the construction and operation spur siding a branch of the railway with which it is connected.
Blackwoods Limited v. The Canadian Northern Railway Can. S.C.R. 92)
applied, Duff J. (dissenting)
.
5-Negligence - Dangerous 'works and materials tarnings and instructions - Employer's liability icay Act," R.S.C., s. 306- "Construction and operation of rail- ,way."] The limitation of one year, respect of actions to recover compensation for injuries sustained reason or operation" railways, provided section of the "Railway Act" (R.S.C., ch. relates only to injuries sustained in the actual construction or operation a it does not apply to cases preparing materials may be necessary for the construction of their Robinson ( lied; judgment appealed from Man. R.
(Leave to appeal to 6-Municipal corporation ment and taxation
Meetings of coun- Transacting -Place of meeting - Sale for arrears of taxes - V. s. 83 (a) (B.C.)_ R.S.B.C.,
144-Statutory relief Limitation action.] Per Fitzpatrick C.J. and Idington and Anglin JJ.- Prior the British Columbia "Municipal Act, by the
'SMunicipal Amendment Act, 1894,"
Vict. (B.C.)
ch. sec. municipal councils subject to those statutes had no power to hold meetings for the transaction of any administrative, legislative or judicial business of the municipal corporation at a place outside of the territorial boundaries of the municipality.-Per Fitzpatrick C.J. and Idington,
Duff and Anglin JJ.-Courts of revision organized under the British Columbia municipal statutes, have no power to exercise their functions as such except at meetings held within the territorial limits of the municipality where the property, described in the assessment rolls to revised by them, is situate.
of of the
Amendment Act, 1894," inserted in the
"Municipal Act,
(B.C.), a new provision, section (a), as follows:
"All meetings a municipal council shall take place within the limits of the municipality, except when the council have unanimously resolved that it would be more convenient to hold such meetings, or some of them, outside of the limits of the municipality."-Held, Brodeur J. dissenting, that there was no proof such a unanimous resolution as the statute requires.-The council of the respondent municipality, without any formal resolution as provided the amended statute, held its meetings during several years at a place outside the limits of the municipality, and organized courts revision there.
These courts held all their meetings at the same place as the council and assumed to revise the municipal assessment rolls at those meetings.
proved the rolls revised and enacted oy-laws, from year to year, levying rates and authorizing the collection of taxes on the lands mentioned in the rolls, and, after notice as provided the statutes, spld lands so assessed and alleged to be in arrear for the taxes so imposed- Held, Brodeur J., dissenting, that the assessment rolls were invalid, that the by-laws levying the rates and authorizing the collection of taxes on the lands mentioned therein were null and void, and that the sales of the lands made for alleged arrears of taxes were illegal and of no effect.-Per Duff and Anglin
JJ., Brodeur J. contra.-The default in payment of taxes, by the appellant, and his subsequent inaction silence, while aware of the fact that his lands had been sold for alleged arrears taxes, did not disentitle him from taking advantage of the statutory procedure respecting the contestation of sales for arrears of taxes either estoppel, I acquiescence or laches.
The provisions of section of the "Municipal Act, (now R.S.B.C. (2),) have no application to invalid councils on occasions when they could not perform legislative functions.-The judgment appealed from was reversed, Brodeur J. dissenting, on the ground that, as the council had held its first meeting in each year within the limits of the municipality and adjourned for the purpose of holding its next meetings at the place outside of the municipality where all other meetings were held, the by-laws approving of the assessment rolls and those levying rates and authorizing the collection of taxes were valid and the sale the lands question for arrears of such taxes was legal and effective.
7-Constitutional law - Act, s. s.-s 2-R.S.Q.
s. (b), (c); (Que.) V. s. 2; 6 Edw. VII. s. 1-Legislative juris- Extraterritorial movables - Decedent domiciled in province.] The legislative authority of a province in the matter taxation conferred sub-section of section of the "British North America Act, which authorises the levying of "direct taxation within the province," extends to the imposition of duties upon the transmission of movables having a local situs outside the provincial boundaries which form part of the succession of a decedent domiciled within the province.
Woodruff v. The Attorney-General for Ontario 508, distinguished.
(Q.R. 20 K.B.
versed, Davies and Anglin JJ. (dissenting)
.-At the time of the death of 11th April, the statutes in force in the Province of Quebec relating to succession duties provided
"all property in, usufruct or enjoyment movable and immovable shall liable to the following calculated upon value transmitted, aft&r deducting debts and charges existing at the time of the death, etc."
Subsequently, Edw. VII. ch. a clause was added (see. (c)), as follows:
"Tne word 'property' within the meaning of this section shall include all property, whether movable or immovable, actually situate or owing within the province whether the deceased at the time of his death had his domicile within or without the province, or whether the debt is payable within or without the province, or whether the transmission takes place within or without tne province, and all movables, wherever situate, of persons having their domicile
(or residing), in the Province of Queat the time of their death," which was in force at the time of the death of
H. H. 26th December,
Succession duties were levied, in respect of both estates upon the whole value of the property devolving including, in each case, movable property locally situated in the United States of America. The action was to recover back those portions the duties paid in respect of the value the movables situated outside the limits the Province Quebec.-Held, reversing the judgment appealed from
(Q.R. K.B. 164), Davies and Anglin JJ. dissenting, that the movable property situated outside the limits of Queforming part of the succession
H. H. was subject to the duty so imposed.-On an equal division of opinion among the judges of the Supreme Court
Canada the judgment appealed from stood affirmed in so far as it held that the limits of Quebec forming part the estate of L. was not liable to
.....
S-Title to land-"Torrens system"- - Saskatchewan "Land Titles Act," Edw.
of contract-Conditionsenforceable against registered owner.] Under the provisions
Titles Act"
Edw. VII. ch. 24), the lodging of a caveat in the land titles in which the title to the lands in question is registered, prevents the acquisition of any legal or equitable interest in the lands adverse to or in derogation of the claim of the caveator.-A company, ing registered owner of lands under the Act, entered into a written agreement to sell them to P., who assigned his interest in the contract to who then agreed to transfer the equitable interest, thus acquired, to out knowledge of A.'s interest, McK. & acquired a like interest from A caveat claiming interest in the lands was then lodged in the proper land titles and, without inquiry or actual notice of the registration the caveat, McK. & afterwards tained the approval of the company to the assignment which had been made to them.
In an action for specific performance,-Held, per Davies, Idington, Anglin and Brodeur JJ., that, as the purchasers from were on equal terms as to equities, had priority in point of time at the date when his caveat was lodged; that such priority had been preserved by the registration the caveat, subsequent advantage which would, otherwise, have been secured the company's approval of the to McK.
& was postponed to any equitable right which A. might have to a conveyance.
And, further, per Idington J., that, irrespective of the lodging of the caveat, had prior equity to the subsequent assignees. agreement the company provided that no assignment of the contract should be valid unless it was for the whole of the purchaser's interest and was approved by the company, and also that the assignee should become bound to discharge ail the obligations of the purchaser towards the company. Until the time of the approval of the assignment to McK. & none of these conditions had been complied with.-Held, per Davies, Idington, Anglin and Brodeur JJ., that the conditions in restriction of such assignments of the original contract could invoked only the company.-Held, per Duff J., dissenting, that, as the rights of against the company had never become vested in according to the provisions of the contract, he had acquired no enforceable right against the company, the registered owner of the lands, and, consequently, he had no legal or equitable interest in them which could protected by caveat.-Judgment appealed from (4
Sask. L.R. affirmed, Duff J. dissent- McKiLLor & v.
9-Municipal corporation - Taterworks-Immovable outside boundaries
Purchase credit
Promissory notes-Hypo thec- By-law - -Approval of ratepayers-Special rate
-Sinking-fund-Construction of statute
Edw. VII.
95-R.S.Q.,
1909, tit. XI. - "Cities and Towns of the Town
Shawinigan Falls, acting under a special
Act of incorporation, Edw. VII. ch.
and the "Cities and Towns Act'"
Title XI., enacted a law authorizing the purchase by the municipality of the appellants' electric light and power plant, which was situated outside the muincipal boundaries, but within twenty miles thereof, for the purpose of establishing a system of electric lighting and waterworks within the municipality.
The price of the property was to be paid in part annual instalments, to secured by the promissory notes the municipal corporation, and the balance, being the amount of a subsisting hypothec and interest thereon, was to satisfied by the corporation assuming the hypothecary obligations.
Previous to enactment the by-law had not been approved by a vote of the ratepayers, and it did not impose a special rate to meet interest and establish a sinking-fund, as required by article 1909.-Held, affirming the judgment appealed from, (Q.R. 19
K.B. 546),
Anglin J. (dissenting)
, that the by-law was invalid.-Held,
Davies, Idington and Duff JJ., that the municipal corporation had no power to establish such works outside the boundaries of the municipality. Per Anglin J.
dissenting, that in view of the situation of the electric power plant, the peculiar circumstances case, and special provisions of the Act incorporating the town, it was competent for the municipal corporation to acquire the property and to establish and maintain the works in question.-Per Davies J.,
Anglin J. contra, that the by-law was invalid for want of provision, either itself or in another by-law contemporaneously enacted, fixing the necessary rate for the purpose of meeting interest and establishing a sinking-fund, as required article 5668 1909.-Per Idington J., Anglin J. contra, that the by-law was one which required the approval the ratepayers of the municipality, as provided article respecting loans, and, as their assent had not been obtained prior to enactment the by-law was invalid.-Per Anglin J.-The statutory obligation in respect of the imposition a special rate to meet interest establish a would discharged the levy of the necessary rates for those purposes from year to year until the debt to incurred ...... 10-Mortgage - Manitoba Property Act"-Power of sale - Statutory supervision-Registered title-Equitable rights mortgagee-Limitation R.S.M.
s. - Property Limitation Act," R.S.C. In respect of lands subject to the operation of the "Real Property Act, ch. mortgagees have no registered interest, but merely obtain powers disposing thereof; these powers not vest as incidental to the estate mortgaged, but are efficacious only virtue of the statute. Where the stipulates for a power sale, on default, without notice, and contains no proviso dispensing with the official supervision required the statute, a sale by the mortgagee, purporting to be made under that power, without compliance with the requirements of section the Act or order of the court, cannot operate to extinguish the registered title the mortgagor.-Judgment lan. R.
Anglin
JJ. (dissenting)
.-Per Davies,, Duff and Brodeur JJ., affirming the Man. R. 522). - The registered title of mortgagors in lands subject to the operation of the "Real
R.S.M., ch. and of persons claiming through them, are protected the provisions the 75th section of that statute denying the acquisition of title adverse to or in derogation of that of the registered owner of such lands length of possession only; the limitation provided section the "Real Property Limitation Act," R.S.M. 1902, ch.
in favour of mortgagees, has no application to lands after they have been brought under the "Real Property Act."
11-Construction of statute- Fishery and game leases
Possession-Use and occupation-Right of action-Action en complainte-Renewed leases - - Works to facilitate lumbering operations
-Penning back waters out of track lessees-Injury to preserves - Injunction-Demolition of works .........
12-Municipal corporation-Highways
-Nuisance-Repair of sidewalks-Negligence-Statutory duty-Nonfeasance - Personal injury-Civil liability-Right
- (Imp.) "B. N. Act, s. 92(2) [Direct taxation].. 469
(Imp.) Act, s.
[Exemptions from taxation] ......
ss. 26a, 226
[Railway spurs and sidings] ......
R.S.C. ss.
[Railway tariffs] ........ 321
5-R.S.O. s. [Limitation of actions for compensation] .. 355
6-R..C.
("Bills of Exchange Act"] ........
Statutes-Continued. .
7-R.S.C. s. ["Supreme Court Act"]
.............
V. s. 2 [Railway land subsidies] .......................
9- 1 Edw. VII., [Canadian Northern Railway]
............
10- & Edw. VII., s. 1 [Railway extensions] ............
arts. R.S.Q. tit. XI. ["Cities and Towns Act"] ....................
arts. 7295, to 7300 [Industrial improvements in watercourses] ........................
(Que.) V. s. [Succession duty] ......................
18-R.S.MI. ["Real Property Act"] ......................
19-(Man.) 52 V. [Northern Pac. and Man. Railway] ..............
20-(Man.) V. P. & Man. Statutes-Continued.
21-(Man.) 1 Edw. VII., 39 [Canadian Northern Railway] .........
22-(Man.) & 4 Edw. VII., 64, s.
(1) ["Winnipeg City Charter"].
R.S.B.C. [Municipal
24-(B.C.) V. c. s. 83a [Municipal councils] ...................
25-(B.C.) V. s. [Municipal councils] ....................
(B.C.) 64 V. s. 219 [Repair of highways] ....................
(Sask.) Edw. VII., 24 ["Land
Titles Act"] .....................
28-(Alta.) Edw. VII., ["Local
Improvement Act"] ..............
DUTY-Constitutional law
Construction statute s. s.-s. 2-R.S.Q. s.
1191(c); (Que.) V. s.
Edw. VII. s. 1-Legislative jurisprovince"- Extra-territorial movables - Decedent domiciled in province.] The legislative authority of a province in the matter of taxation conferred sub-section of section the "British North
America Act, 1867," which authorizes the levying of "direct taxation within the province," extends to the imposition duties upon the transmission of movables having a local situs outside the provincial boundaries which form part the succession of a decedent domiciled within the province. Woodruff v.
Attorney-General for
Ontario
Judgment appealed from (Q.R. 20 K.B.
reversed, Davies and Anglin JJ. (dissenting)
.-At the time of the death of
Succession Duty-Continued.
11th April, the statutes force in the province of Quebec relating to succession duties provided that "all property in, usufruct or enjoyment movable and immovable property in the province shall liable to the following taxes calculated upon the value the property transmitted, after deducting debts and charges existing at the time the death, etc."
Subsequently, by Edw. VII. a clause was added 1191(c)), as follows: "The word 'property' within the meaning of this shall include all whether movable or immovable, actually situate or owing within the province, whether the deceased at the time of his death had his domicile within or without the province, or whether the debt is payable within or without the province, whether within without the province, all movables, wherever situate, of persons having their domicile residing)
of Quebec at the time of their death," which was in force at the time the death of H. H. 26th December, Succession duties were levied, in respect of both .estates upon the whole value of the property devolving including, in each case, movable property localsituated in the United States of America.
The action was to recover back those portions of the duties paid in respect of the value of the movables situated outside the limits of the Province Quebec.-Held, reversing the judgment (Q.R.
Davies and Anglin JJ. (dissenting)
, that the limits of Quebec forming part the succession of H. H. was subject to the duty imposed.-On an equal division of opinion among the judges of the Supreme Court Canada the judgment appealed from stood affirmed in so far as that the movable property situated outside the limits of Quebec forming part of the estate L. was not liable to See SuccEssIoN
Chattel mortgage Tender-Continued.
Proceedings taken faith
TITLE - Saskatchewan "Land Titles Act," Edw.
of contract-Conditions-owner.] Under the provisions
Titles
Edw. VII. 24), the lodging of a caveat in the land titles in which the title to the lands in question is registered, prevents the acquisition any legal or equitable interest in the lands adverse to or in derogation of the claim of the caveator.-A company, being registered owner lands under the Act, entered into a written agreement to sell them to
P., who assigned his interest in the contract to who then agreed to transfer his equitable interest, thus acquired, to
A.
Subsequently, without knowledge
A.'s interest, McK. & acquired a like interest from
A caveat claiming interest in the lands was then lodged in the proper land titles and, without inquiry or actual notice of the registration of the caveat, McK. & afterwards obtained the approval of the company to the assignment which had made to them.
In an action for specific performance.-Held, per Davies,
Idington, Anglin and Brodeur JJ., that as the purchasers from were on equal terms as to equities, A. had priority point of time at the date when his caveat was lodged; that such priority had preserved the registration of the caveat, and that the subsequent advantage which would, otherwise, have secured by the company's approval of the assignment to McK.
& was postponed to any equitable right which might have to a conveyance.
And, further, per
Idington J., that, irrespective lodging of the caveat, had prior equity to the subsequent assignees.-The agreement the company provided that no assignment of the contract should valid unless it was for the whole of the purchaser's interest and was approved by the company, and also that the assignee should become bound to discharge all the obligations of the pur- Title to Land-Continued.
chaser towards the company.
Until the time of the approval of the assignment to & none these conditions had been complied with.-Held, Davies, Idington, Anglin and Brodeur JJ., that the conditions in restriction such assignments of the original contract could be invoked only the company. per Duff J., dissenting that, as the rights of against the company had never become vested in according to the provisions of the contract, he had acquired no enforceable right against the company, the registered owner of the lands, and, consequently, he had no legal or equitable interest in them which could protected by caveat.-Judgment appealed from Sask. L.R. affirmed, Duff J. dissenting. v. .......... 2-Construction of statute - "Alberta Local Improvement Act"-Assessment and taxation - -Railway aid-Land subsidy - Crown Interests of private owner.. 3-Mortgage-Manitoba "Real Property Act"-Power of sale-Special covenant
Statutory supervision Equitable rights Possession by mortgagee-Limitation action-Construction of statute-R.S.M. s. 75-"Real Property Limitation Act," R.S.M. s. .............. VENDOR PURCHASER - Agreement to convey lands - Price in money - Breach of contract- Recovery for "money had and received" or exchange-Damages.] sold his interest in certain lands to W. for a consideration, fixed at $19,000, which $16,000 was to satisfied the conveyance of other lands, alleged to be owned by W.
W. then executed a written agreement purporting to sell these other lands to for the sum of sixteen thousand dollars, acknowledged then and there to have been received the vendor; bound himself to convey them to the purchaser, with a clear title, within one year from the date of the agreement, and time was stated to of the essence of the contract.
Upon default the vendor to convey the lands, according to Vendor and Purchaser-Continued.
the agreement, the plaintiff sued to recover the as money had and received for which no consideration had been given. In his defence, W. contendthat the consideration mentioned in the agreement was not actually in cash but consisted merely of lands to conveyed in exchange at a valuation fixed at that amount and, consequently, that the plaintiff could recover only damages to assessed according to the value the lands which he had failed to convey.-Held, that, in the absence of evidence of any special purpose as the basis the agreement, the terms of the contract in writing governed the rights the parties that the consideration mentioned in the agreement should regarded as a price paid in money and to the relief sought.
Judgment appealed from
(20 'Man. R. 562) affirmed.
...............
2-Condition of agreement - Payment on account of price- Form action-Practice.] An agreement for the sale lands acknowledged receipt
$600 on account of the price and provided, in the event of default in the payment of deferred instalments, that the vendor might, on giving a certain notice, declare the agreement null and void and retain the moneys paid the purchaser.
default the purchaser to make payments according to the terms of the agreement the vendor served him with a notice for cancellation which incorrectly recited that the contract contained a stipulation for its cancellation, in case of default, "without notice," and concluded declaring the contract null and void "in accordance with the terms thereof as above recited."
vendor, refused a tender the unpaid balance of the price and re-entered into possession of the
In an action by the purchaser for specific performance or the return the amount paid, rescission was not askfor.-Held, that, as the vendor had not given the notice required by the conditions of the agreement he could not retain the money as forfeited on account of the purchaser's default; that, as the payment had not been made as earnest, but on account of the price, the
Vendor and Purchaser-Continued. purchaser was entitled to recover back on the cancellation of the contract; and that, as the relief sought the action could not be granted while the contract subsisted, demand for rescission must necessarily implied from the plaintiff's claim for the return of the money so paid.
& 3-"Torrens system" struction statute
Saskatchewan "Land Titles Act," Edw. of contract - pany - Death from contact with train -Absence of eye witness-No warning at crossing - Findings of jury-Reasonable inferences - Balance of probabilities.] About 5.30 on a December afternoon, left his place of employment to go home.
An hour later his body was found some 350 yards east of a crossing of the Grand Trunk Railway, nearly opposite his house.
There was no witness of the accident, but it was shewn on the trial of an action by his widow and children, that shortly after he was last seen an express train and a passenger train had passed each other a little east of the crossing, and there was evidence shewing that the latter train had not given the statutory signals when approaching the crossing.
The jury found that was killed by the passenger train, and that his death was due to the negligence of the latter in failing to give such warnings.
This finding was upheld the Court of Appeal, that the jury were justified considering the balance of probabilities and drawing the inference from the circumstances proved, that the death of was caused by such negligence. WATERS.
WATERWORKS-Municipal corporation Electric light and Waterworks-Continued.
Immovable outside boundaries
-Purchase on credit-Promissory notes
-Hypothec-By-law-Loans - Approval of ratepayers-Special rate
Sinkingfund - Construction of statute-(Que.)
Edw. VII. 95-R.S.Q. 1909, tit. XI.
WORDS PHRASES.
"Direct taxation within the Province"
................................
Words and Phrases-Continued. "Operation" ...................... "Passage of by-law" ...............
Statutes and regulations cited
-
- s. 219
-
Unresolved citations
- section 20
- section 100
- section 1
- Section 100
- section 2
- section 83
- section 115
- section 70
- section 126
- Section 70
- section 108
- section 109
- section 110
- section 111
- section 49
- section 4
- section 75
- Section 99
- section 99
- sections 83
- 99
- sections 3
- 4
- section 78
- section 77
- sections 100
- 110
- Sections 2
- 3
- section 3
- sections 109
- section 157
- sections 111
- 112
- Section 83
- sections 80
- section 90
- section 112
- Section 157
- section 89
- sections 94
- 95
- sections 93
- section 80
- section 71
- ss. (2)