Maritime Coal, Railway and Power Co. v. Herdman

en 1'absence d'un tel titre, on aurait pu pr6tendre qu'il y avait destination du pare de famille, dont le seul but est de suppl6er au titre qu'exige la loi. Tout ce qu'il y a ici done, c'est la cr6ation d'une servitude ordinaire d'appui et de passage.

Le passage mitoyen n'est pas en question dans cette cause et il ne s'agit que du droit d'appui, cr66 conventionnellement, et qu'on doit soigneusement distinguer de la servitude 16gale de mitoyennet6.

Cette dernibre espece de servitude existe sans convention et en vertu de la loi seule, et elle suppose n6cessairement que les deux terrains sont contigus et que le mur a t6 construit sur la ligne de s6paration entre ces terrains. Si, comme les titres l'indiquent, les terrains des parties sont spars par le passage mitoyen dont elles paraissent avoir fourni chacune la moiti6, il n'existe aucun droit de mitoyennet6, en vertu de la loi, sur un mur qui se trouverait construit entibrement sur le terrain des intiua6s, mais en bordure du passage mitoyen qui s6pare les deux immeubles.

Cependant le droit d'appui sur la maison de Hart a pu tras bien 6tre accord6 conventionnellement par ce dernier, avec le droit de bitir au-dessus du passage mitoyen, et telle a t6 A mon avis la convention des parties.

Ce droit d'appui est une v6ritable servitude conventionnelle.

II faut toutefois avoir 6gard aux termes par lesquels cette servitude conventionnelle a 6t6 cr66e. L'acte d6clare que

Woolsworth a acquis le droit A perp6tuit6 de bitir et accoter sur le mur du pignon du magasin et maison de Hart, et c'est ce pignon qu'on d6clare mitoyen entre les parties.

Or le mot pignon est d6fini comme la On objecte cependant que, d'apr~s le sens populaire J du mot "pignon" dans la province de Qu6bec, ce mot s'entend de tout le mur lat6ral d'un 6difice, et non pas seulement de la partie sup6rieure de ce mur. En supposant 'qu'il en erait ainsi, et la preuve est silencieuse h cet 6gard, je ne puis arriver A la conclusion que les parties aient envisag6, comme le mur de pignon qui 6tait sujet A la servitude et 6tait d6clard mitoyen, autre chose que la portion sup~rieure du mur lat~ral de Hart A partir de neuf pieds du sol. Toute la d6claration de 1'appelante le d6montre.

Elle veut que les intim6s reconstruisent h leurs frais la partie de miur depuis les fondations jusqu'A la hauteur de neuf pieds du sol, et qu'A partir de cette hauteur le mur de pignon soit construit A frais communs, alors que si tout le mur lat~ral 6tait mitoyen toute cette reconstruction serait h frais communs. Je cite les paragraphes 47 et 48 de sa d~claration:

A A (Ce paragraphe 5 rapporte les termes mimes de l'acte de vente entre Hart et Woolsworth.)

Done ce que l'appelante entend par "mur de pignon", objet de la servitude et d6clard mitoyen par l'acte de vente de Hart A Woolsworth, c'est la portion sup6rieure du mur lat6ral A partir d'une hauteur de neuf pieds du sol et non pas tout ce mur lat6ral.

It ne peut, il me semble, rester l'ombre d'un doute quantA l'interpr6tation. plut6t restrictive qu'extensive que 1'appelante donne au mot "pignon" quand on aura lu ce qu'elle dit elle-mAme dans son factum que je cite textuellement:

Je dois done refuser pour ma part d'6carter le sens que les lexicographes et I'appelante elle-mime donnent au mot "pignon" pour un sens soi-disant populaire et ordinaire, et j'entends par le pignon, qui 6tait sujet au droit d'appui et mitoyen entre les parties, la portion supdrieure du mur lat6ral de Hart A partir d'une hauteur de neuf pieds du sol. En d6cider autrement. serait entibrement refaire la demande de l'appelante. Il est par cons6quent bien clair que le droit conventionnel de mitoyennet416gale dont il s'agit se restreint au mur de pignon de Hart commengant A une hauteur de neuf pieds du sol. Nous sommes done loin des conditions de la mitoyennet6 qui implique la co-propri6t6 du mur depuis les fondations jusqu'A I'h6berge (art. 510 C.C.), (c'est-h-dire jusqu'A la ligne de la hauteur de l'6difice le moins 61ev6, lorsque les deux 6difices sont de hauteur inigale), et aussi la copropri6t6 du sol sur lequel le mur est assis.

Ici il y a copropri6t6 et mitoyennet6 du pignon seulement, et non du mur entier ou de ses assises, et cela , partir d'une hauteur de neuf pieds du sol seulement.

Celd 6tant, j'arrive h la conclusion que le droit accord6 h Woolsworth, bien que ce droit soit qualifi6 de perp6tuel, 6tait fe droit de s'appuyer sur le pignon d'une maison d6sign6e comme actuellement existante lors de la passation de l'acte de vente, et non pas, comme on aurait pu le dire, le droit de s'appuyer sur tout J. mur ou 6difice qui pourrait tre construit sur le terrain de Hart, et le pignon seul A partir de neuf pieds du sol 6tait mitoyen entre les parties.

Ce droit de servitude, qui avait pour objet ce pignon, ne pouvait s'exercer que tant que le pignon subsistait lui-meme. Si ce pignon, objet de ce droit de servitude, venait A p6rir par cas fortuit, le droit de servitude cessait (art. 559 C.C.), car tout droit, perp6tuel ou non, cesse lorsque son objet n'existe plus (art. 1200 C.C.). Je ne perds pas de vue la disposition de l'article 522 C.C., mais cet article laisse encore A d6terniiner si les parties dans l'espce ont r6ellement voulu crier un droit de servitude qui devait subsister plus longtemps que l'objet sur lequel ce droit devait s'exercer, et je ne crois pas qu'elles aient en cette intention. Or, le mur de pignon et toute la maison de Hart, ainsi que- la bitisse qui s'y appuyait, ont t d6truits dans l'incendie de 1908, ce qui 6videmment est un cas fortuit.

Le droit accord6 A Woolsworth se trouvant dis lors sans objet a cess6 de pouvoir s'exercer, et les ayants cause de Hart n'6taient pas oblig6s de reconstruire leur maison, car, en matibre de servitude, l'obligation du fonds servant est passive, ce qu'on exprimait autrefois par la maxime: servitutum non ea natura est ut quis aliquid faciat sed ut patiatur et non faciat.

Il est vrai que les intimbs ont biti une maison dont le mur latral se trouve en partie seulement sur l'emplacement de l'ancien mur, mais on ne peut dire avec Particle 560 C.C. que car l'appelante all~gue que le mur de la nouvelle maison ne peut servir de mur mitoyen. Et pour cette mime raison elle veut forcer les intim6s A reconstruire A leurs frais le mur de leur maison jusqu'A la hauteur de neuf pieds du sol, de manibre qu'il puisse supporter J. le poids de la construction que l'appelante veut 6riger. Si, apris l'incendie, I'appelante ne pouvait forcer les intimds A reconstruire leur mur, je crois qu'elle ne peut les obliger A d6molir et A refaire le mur qu'ils ont bAti, pour la raison que ce mur ne suffirait pas comme mur d'appui pour la construction de 1'appelante.

L'appelante done se trouve dans cette situation que le droit de mitoyennet6 qu'elle invoque .ne peut plus s'exercer, et elle n'est pas dans les conditions de la mitoyennet6 lgale, car son terrain n'est pas contigu au site de l'ancien mur.

Son action, avec les conclusions qu'elle renferme, manque absolument, A mon avis, de base juridique.

Pour ces motifs-et sans d6cider si le d~faut de mention dans les actes subs6quents du droit d'appui en question et le d6faut d'enregistrement de la servitude ont rendu cette servitude inopposable aux intimdesje suis d'avis de renvoyer l'appel de l'appelante avec d6pens.

Je n'exprime aucune opinion quant au motif. sur lequel la cour d'appel se base en s'appuyant sur la d6cision de cette cour dans la cause de Delorme v. Cusson(1). Cette d6cision ne me parait qu'un arr~t d'espce que l'on aurait tort de vouloir 6riger en .arr~t de principe.

Fortunat Lord.

Chauvin K.C. for the motion.

Elder contra.

J.-This is a motion made before me by the appellant on August 6th, 1919, for leave to appeal to the Supreme Court of Canada from a judgment of the Court of .King's Bench (appeal side) of the Province of Quebec, of the 26th June, 1919, which unanimously affirmed the judgment of the Superior Court (MacLennan J.) of the 11th February, 1919, dismissing a claim made by the appellant against the respondents for $50,000.00.

The litigation arose out of an agreement of the 13th March, 1917, betweei the appellant and Curtis's & Harvey (of Canada), Limited, whereby the latter, for the consideration therein stated, promised to pay the appellant the sum of $250,000,00, payable as follows:-$25,000.00 in ten days, $75,000.00 before the end of May, 1917, and $150,000.00 before the 15th July, 1917, with option to the company, in the event of its obtaining any new contract involving deliveries after the completion of existing contracts, that it might pay the last instalment of $150,000.00 in three amounts of $50,000.00 on the last days of July, August and September, 1917, with interest at 6%.

By clause 7 of the agreement, it was provided that until full payment of the sum of $250,000.00, the company would not deal with, dispose of or charge its assets, save in the ordinary course of its business operations, under a penalty of $50,000.00 payable to the appellant.

The company paid the two first instalments, and the condition provided for having happened, it made option to pay the balance of $150,000 in three instalments, and it paid the first of these instalments, $50,000.00, which became due on the 31st July, 1917. On the 18th August, 1917, practically the whole the company's plant and materials at Dragon were destroyed by fire and explosions which prevented the continuance of the company's manufacturing operations, and it was decided that it was inadvisable to rebuild the plant.

The company had then an unfinished contract with the United States Government, entered into in July, 1917, for the manufacture of 10,800,000 pounds of refined trinitro-toluol, which contract was cancelled after the fire, and the United States Government made a new contract with Canadian Explosives Limited out of which a substantial percentage of profit was to be paid, and was paid, to the company.

A winding-up order was made against the company on the 5th October, 1917, on the petition of the sec- J. retary of the company in his capacity as shareholder, but at the request of the company which acquiesced in the winding-up order.

The appellant filed his *claim with the liquidator for the balance of $100,000 then due to him, and also claimed the penalty of $50,000.00 on the ground that the company had violated clause 7 of the agreement. This latter claim was contested by the liquidator whose contestation was maintained by the Superior Court and by the Court of King's Bench.

It is stated in the reasons for judgment of Mr. Justice Martin, in the latter court, that the liquidator has since paid the appellant $75,000.00 and that there remains only due $25,000.00 on the $250,000.00 payable under the agreement.

With regard to the penalty of $50,000.00, both courts have held that the appellant cannot claim it under clause 7 of the agreement, the Superior Court because the company had not dealt with its assets in the manner provided against, and the Court of King's Bench mainly because by the.happening of the fire of the 18th August, 1917, the condition of clause 7 no longer applied and the company was entitled to deal with its remaining assets in the manner in which it had done in the interest of the appellant and its other creditors.

Under these circumstances the appellant has applied to me for leave to appeal to this court from the judgment of the courts below.

This appeal cannot be taken, under section 106 of the "Winding-Up Act" (R.S.C. ch. 144), unless the amount involved exceeds $2,000.00, and unless leave be obtained from a judge of the Supreme Court of Canada.

Curis's Here the amount involved is sufficient to give jurisdiction to this court.

The sufficiency of the amount is not however conclusive of the right of the appellant to appeal to this court.

He must obtain leave, and the discretion to grant or refuse this leave must be exercised judicially, that is to say, for sufficient reason in the judgment of the judge to whom the application for-leave to appeal is made.

The question as to the sufficiency of the reasons for granting leave to appeal is not now a new one, and certain rules have been laid down which I feel I should follow.

Thus in Lake Erie and Detroit River Ry. Co. v. Marsh(1), where special leave to appeal was applied for under sec. 48, sub-section e, of the "Supreme Court Act "-and I conceive that the same rule should be followed in cases arising under section 106 of the "Winding-Up Act"-Mr. Justice Nesbitt stated that: While the learned judge disclaimed the intention of laying down any rule which would not be subject to future qualification, I think his statement of the reasons why the discretion to grant leave should be exercised furnishes a convenient test for the guidance of the court or of its judges in a matter like this.

And I would also think that where the only importance of a case is on account. of the amount at issue, and where, however important the matter may be for the parties to the litigation, the only question to be determined is the construction and effect of a private contract, leave to appeal to this court from the unanimous judgment of two courts should not be granted.

Moreover, re The Ontario Sugar Company J. (McKinnon's Case)

Mr. Justice Anglin refused leave to appeal, under section 106 of the " Winding- Up Act," on the ground that the proposed appeal raised no question of public importance, and that the affirmance or reversal by this court of the judgment of the Ontario Court of Appeal would not settle any important question of law or dispose of any matter of public interest.

. This is emphatically the case here.

The proposed appeal would deal exclusively with the question whether there has been a breach on the part of the company of the obligation it assumed under clause 7 of its agreement with the appellant, entitling the latter to claim the penalty of $50,000.00, and the affirmance or reversal of the judgment of the Quebec Court of King's Bench would not settle any important question of law or dispose of any matter of public interest. I can therefore see no reason why I should exercise the discretion given me by section 106 of the " Winding- Up Act" and grant leave to appeal from the judgment of the Court of King's Bench. The motion of the appellant is dismissed with costs.

Motion dismissed with costs. A

N (DEFENDANT) ........................

*Oct. 14,15. *Oct. AND

J. L SKENE AND J. S. CHRISTIE RESPONDENTS. (PLAINTIFFS) .....................

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA.

Judgment-Setting aside-Common error of parties.

In a former action between the appellant and the respondents, the trial judge pronounced an oral judgment finding in favour the appellant upon certain contested items and in favour the respondents upon certain other contested items and fixed the rate per foot upon which the sum for which judgment was to be finally given in favour the appellant was to be calculated; and a reference to the registrar was directed to work out this judgment and express the result in figures.

The solicitors then agreed to substitute a report by architects for this reference.

It had been expressly stated that it was the respondent's intention to appeal from the judgment.

The order, drawn up by agreement and initialled by the solicitors for both parties, apparently deprived the respondents that right.

Subsequently, the respondents appealed but the appeal was dismissed on the ground that it was a judgment by consent. The respondeiits then took a direct action to set aside the judgment.

Held, that there had been common error in the expression of the intentions of the parties and the judgment was properly set aside. Wilding v. Sanderson, 2 Ch. 534, followed.

Per Davies C.J. and Duff, Brodeur and Mignault JJ.-The appellant, having succeeded in his contention that the judgment was drawn in a form which rade it unappealable, cannot now be allowed to say, as against the respondents, that this was not in law the construction the order.

Judgment the Court Appeal W.W.R. 740), affirmed. APPEAL from the judgment of the Court of Appeal for British Columbia (1), affirming the judgment of *PRESENT:-Sir Louis Davies C.J. and Idington, Duff, Anglin, Brodeur and Mignault JJ.

(1) W.W.R. 740.

the trial judge, Morrison J., and maintaining the respondents, plaintiffs', action.

The material facts of the case and the questions in issue are fully stated in the above head-note and in the judgments now reported.

concur in the opinion of Mr. Justice Duff.

J.-The judgment in the original action by appellant against respondents, on the main issue therein, clearly was pronounced by the learned trial judge against the will of the respondents.

And their avowed intention to appeal therefrom appears in the answer by their solicitors, to the suggestion of appellant's solicitors, that they should mutually try to avoid the expense of a reference to determine the amount of the allowances to be made the respondents, within the terms of the opinion judgment given by the learned trial judge. That renders it difficult for me to understand how appellant could in good faith take the objection made to hearing an appeal from the formal judgment issued as the result of the adjustments reached to avert a reference. The appellant's solicitors expressly recognized in their reply to said answer the right and intention to appeal.

The adjustment of the matters to be the subject of a reference was all that either party contemplated giving assent to.

The initialling of the consents was evidently only intended to shew an adjustment had- been made of the said matters and need for a reference.

As I read the memo thus initialled it was all done on the "basis of the judgment" pronounced by the learned trial judge.

And as I understand the facts appellant's counsel unfairly refused to let the Court of Appeal get seized of these facts when the motion for appeal was heard, and thus have the ambiguous document illuminated by what the letters clearly shew the parties intended.

Hence there was a failure of that court to recognize the right of appeal and I imagine a failure of justice. As the learned trial judge herein well expressed his view of the situation thus created:- I, therefore, entirely agree with the judgment appealed from.

It may be that if called upon to consider the judgment in appeal against said judgment I should not agree with the result arrived at.

The mere question of practice or procedure relative to the proper method of rectifying what seems to be a grave wrong, is one that according to the settled jurisprudence of this court we must not interfere with unless a result has been reached that violates natural justice.

The bringing of an action instead of proceeding by way of motion may have resulted in greater expense to be borne by appellant.

Of this the appellant has no right to complain for its course of conduct in refusing to accede to the request for a stay of proceedings, when the appeal was being heard, in order to enable the respondents to. move and rectify the form of judgment which raised the doubt and difficulty, is the cause of resorting to a more costly mode of procedure.

Idinon J.

I think this appeal should be dismissed with costs. J.-There is no dispute as to the agreement between Mr. McMullen and Mr. Bull respecting the judgment which was to be entered in the action. The trial judge at the conclusion of the trial had pronounced an oral judgment in which he found in favour of the bank upon certain contested items and in favour of Skene and Christie upon certain other contested items for which credit was claimed in the defence and fixed the rate per foot upon which the sum for which judgment was to be finally given in favour of the bank was to be calculated; and a reference to the registrar was directed to work out this judgment and express the result in figures.

After some correspondence the solicitors agreed that the two architects who had been examined as witnesses for the respective parties before the trial judge should be requested to make the necessary measurements and calculations and to report to the solicitors, it being understood that, if they reached an agreement, the result of the investigation in figures should be adopted and that they should be incorporated in the judgment as if they had been arrived at by the learned trial judge himself.

It was not only understood but expressly stated that it was Mr. McMullen's intention to appeal from the adjudication of the learned trial judge, that is to say, from the principle of the judgment. findings, of course, in so far as they rested upon the report of the architects or upon the calculations of the solicitors themselves were the necessary result of the adjudications of the trial judge and must stand or fall with these adjudications.

I cannot accept the contention that on these points there was not a concluded agreement. correspondence read together with a document which J. finally became the judgment but which was not a judgment until it had been approved of by the trial judge affords a complete demonstration not only of the general terms but of the particulars of the agreement between the solicitors.

Moreover, there is no dispute upon it. Mr. Bull's evidence is explicit and the effect of the documents. and the oral evidence is that both Mr. McMullen and Mr. Bull believed that both of them were giving their assent to certain findings which, taken with the adjudications of the trial judge, should together constitute a judgment; a judgment which, save as regards these agreed findings, was the judgment of the trial judge based upon his own decision. The truth is that as regards these consent findings the solicitors intended that they should be in precisely the same position as findings upon admissions made in the course of the trial.

The trial judge, in giving judgment, I repeat, was acting in the ordinary course of jurisdiction, not at all extra muros; indeed there was nothing irregular in what was done and a judgment beyond all question could have been drawn in a form which would have excluded any possible suggestion that the judgment itself was a consent judgment or that on any ground the adjudications of the trial judge were not to be open to the appeal to which everybody intended that they should be subject.

I express no opinion upon the point whether or not the form of the judgment presented is strictly an obstacle in the way of an appeal.

The counsel for the bank took the objection that the judgment was drawn in a form which made it unappealable. I am not sure that I quite understand the precise nature of the objection but I gather from the evidence of Mr. McMullen that the view taken by the majority of the Court of Appeal on the occasion was that one paragraph in the judgment shewed that the adjudication was an adjudication by consent, not an adjudication resting upon judicial decision; and that consequently the parties were, as no doubt they would be if such were the case, precluded from impeaching the adjudication by way of appeal. I repeat, that I express no opinion as to this view, but counsel for the bank having contended for this construction and having succeeded in his contention and having got the appeal dismissed as a result of his successful contention, the bank cannot now be allowed to say as against the respondents, that this was not in law the construction of the order.

I refer to a well known passage in a judgment of Bowen L.J. in Gandy v. Gandy(1):- Admittedly this construction of the judgment is one which defeats the intentions of the solicitors whose agreement the judgment was intended to give effect to. There is, as Chitty L.J. said

(2), common error in the expression of the intentions of the parties and therefore the instrument must be rectified or set aside. I think Wilding v. Sanderson(l), governs this It is, I think, nothing to the purpose to say that this is strictly not a judgment by consent. paragraph in the judgment which gave rise to the difficulty was a paragraph which was intended to express the agreement of the parties and indeed, the judgment may, for the purposes of this appeal, be read as two judgments; (Belcher v. McDonald (2));

the judgment formally expressing what was orally pronounced by the trial judge and the judgment by consent expressing the result of the findings and the calculations which the parties had agreed 'to. It was in attempting to express the result of these findings and calculations, in other words, in attempting to give effect to that part of the judgment which rested on consent, that the solicitors unfortunately used language which was afterwards thought to give a character to the whole judgment which nobody ever intended it should bear. Nor should effect be given to the suggestion that the proper course for the present respondent was to apply for an amendment of the judgment by the trial judge.

For myself,. I entertain no doubt that the trial judge would have been quite within the ambit of his competency in making the amendment, because the trial judge never intended to approve a judgment which nobody ever intended that he should approve, a judgment which should make him say that his adjudications rested upon the consent of the parties and not upon his own decision except in respect of the calculations mentioned. While that is so, it is quite clear that counsel for the bank took this position before the Court of Appeal and succeeded in maintaining it-that the trial judge was functus bfficio; and on that ground induced the Court of Appeal to reject the application made by appellant's counsel for an adjournment.

It is not now open to the appellant bank in view of this course of conduct to argue that the present action is unnecessary.

J.

The appeal should be dismissed with costs.

J.:-As between the parties to this action I think it must be taken to be res judicata that the judgment in the former action was non-appealable. If so, on the merits this case is clearly governed by Wilding v. Sanderson(1). On matters of procedure, such as the appellant complains of, it is the usual practice of this court not to disturb the judgments of the provincial courts.

* The appeal fails and should be dismissed with costs. cohur in the opinion of Mr. Justice Duff.

Tupper & Bull.

J.

APPELANT; Feb. (PLAINTIFF) .......................

APL *May 1. AND

HENRY S. ROLSTON (DEFENDANT)...

RESPONDENT. ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA.

Lien-Unregistered purchaser-Priorities-Cancellation of application to registrar-"Land Registry Act," R.S.B.C., 1911, c. s. 22, 3; and ss. 104 and 108, as amended by (B.C.) 1912, c. £8 -"Mechanics' Lien Act," R.S.B.C., 1911, c. 154, 9, 19. P., a beneficial but unregistered owner of land, agreed to sell the land to B. who never registered his agreement, J. being then the registered owner. P. shortly afterwards let contracts to four contractors for the clearing of the land.

On May 3, 1912, P. made an application for a certificate of indefeasible title which was granted.

A report, dated May 23, 1913, made upon a reference as to title ordered in a mechanics' lien action taken by the labourers who had cleared the land certified that "there are no charges of any kind whatsoever against the title" except the liens.

On May 18, 1912, P. conveyed the land to N.M. subject to the agreement with A. and also assigned to hiiv this agreement. On May 20, 1912, N.M. applied to register the assignment as a charge, but, not until October 31, 1913, did N.M. make any application to be registered under, the grant. On January 6, 1914, the sheriff sold all the right title and interest of P. to R. The Court of Appeal held that this sale was a sale of the fee in the lands charged only by the liens.

Per Fitzpatrick C.J.-When N.M. acquired title from P. the land was already impressed with the mechanics' liens.

Per Duff J.-Where an application to the registrar has been cancelled under the provisions of sec. 108 of the "Land Registry Act," the application must be deemed, for the purposes of the "Land Registry Act" and particularly for the purpose of applying sec. 28 of the Act of 1912, to have been void ab initio; and it follows that when the lien affidavits were registered there was, in contemplation of law, no application for registration of the N.M. interest "pending."

Per Duff J.-N.M. was not in the position of a mortgagee but of a person "claiming under" P. and a person "whose rights are acquired after the work of service, in respect of which the lien is claimed, is commenced."

*PRESENT:-Sir Charles Fitzpatrick C.J. and Davies, Idington, Duff and Anglin JJ.

for British Columbia reversing the judgment of the trial judge, Hunter C.J., and dismissing the appellant's, plaintiff's, action.

The material facts of the case and the questions in issue are fully stated in the above head-note and in the judgments now reported.

am of opinion that this appeal should be dismissed with costs.

It seems to be abundantly proved that when the appellant company acquired title from Passage, the common auteur, the land was already impressed with the mechanics' liens which are the foundation of the respondent's title.

Passage had a certificate of indefeasible title which, under the "Land Registry Act," dates from May 3rd, 1912.

He conveyed the land to the plaintiffs subject to the Patterson agreement on the 18th May, 1912, and at that date the work in respect of which the mechanics' liens were created was commenced. The contracts under which the work was done are admitted, the land is identified, and the date at which work started is also proved.

DAVIES J.-I think this appeal should be dismissed with costs.

Co. J.--I think the appeal herein should be dismissed with costs.

DUFF J.-On twi distinct grouiids I think this appeal must be dismissed. First: The services in respect of which the lien-holders acquired their liens were performed in execution of the contract between Passage and certain contractors, dated the 30th of November.

The work was begun within the first week in May and whether the appellant company did or did not become, by virtue of the transfers under which it claims, entitled to registration as owner in fee or as mortgagee, admittedly the instruments were not executed until the 18th of May and no advance was made by the appellant company before that date. By section 9 a mortgagee is entitled to the benefit of that section or to the status of a mortgagee under it only in respect of the principal sum actually advanced to the borrower at the time the works or improvements in respect of which the lien is claimed, are commenced; the appellant company is therefore not in the position of a mortgagee but of a person "claiming under" Passage and a person "whose rights are acquired after the work or service in respect of which the lien is claimed, is commenced, " that is to say, of an " owner." This is not a case therefore in which any difficulty could arise as to compliance with the provisions of section 19 (a) and the interest of the appellant company was therefore bound by the filing and registration of the affidavit required by that section.

Second:

The filing and the registering of the lien affidavits on the 15th Oct., 1912, established the priority of the lien-holders over the interest the appellant company then had or any right the appellant company then had in relation to the land or the title to the land. I am not at this moment satisfied that the appellant company would not acquire in virtue of the transfers of the 18th of May, 1912, the right to register a charge. It may well, I think, be doubted whether sec. 35 of the "Land Registry Act" has any application to such a case. There is authority for the proposition that a vendor under a contract for the sale of land is not entitled to transfer his title in such a way as to put it out of his power to carry out his contract with the vendee and that the vendee may obtain an injunction to restrain him from doing so. Echliff v. Baldwin(1); Spiller v. Spiller (2), and if that be the correct view.of the vendor's position it is perfectly clear that the registrar having notice of the agreement for sale with Patterson could not properly register the appellant company as owner in absolute fee subject to a charge in favour of Patterson; while on the other hand there could be no doubt of the right of the vendor to charge the interest in the land held by him as security for the payment of the purchase money subject to the rights of the purchaser. However that may be, it is very clear to my mind that the appellant company lost its status with respect to the registered title (which I am inclined to think it might have maintained) by its acquiescence in the registrar's notice of cancellation of the 10th of July, 1913. My reason for thinking so is this. The lien-holders by registration under sec. 19 of the " Mechanics' Lien Act " acquired the status of incumbrancees, a status recognized by sec. 22, 1 g., of the "Land Registry Act" and became at least on the registration of the lien affidavits on the 25th Oct., 1912, the holders of a charge or incumbrance on "registered real estate" and therefore by force of sec. 28, ch. 15, British Columbia statutes of 1912 they were unaffected by . any notice, expressed, implied or constructive of any unregistered title, interest or disposition in or relating to the property in question unless an application for the registration of such interest or disposition was then "pending."

I have come to the conclusion and in this I concur with what I take to be the opinion of the Chief Justice of the Court of Appeal, that where an application to the registrar has been cancelled under the provisions of sec. 108 of the "Land Registry Act," the application must be deemed, for the purposes of the "Land Registry Act" and particularly for the purpose of applying sec. 28 of the Act of 1912, to have been void ab initio; and it follows, of course, that when the lien affidavits were registered there was, in contemplation of law, no application for registration of the appellant company's interest "pending."

We may therefore put aside as having no bearing on the question of law raised for decision, any considerations based upon suggestions of notice by reason of the presence in the Land Registry Office of the application of the 22nd of May and the documents by which it was supported.

The effect of section 104 seems to be conclusive in point of law against the appellant company. instruments of the 18th of May could not in the sense of that section "pass any estate or interest either at law or in equity."

It is quite true that they confer a right to registration but there can be no manner of doubt, I think that this right to be registered can only take effect as against registered interests through the instrumentality of an application to register con- MOAGE summated by registration.

It follows that, if the appellant company had been made a party to the proceedings, its claim of priority J.

must have failed; and it has therefore suffered no substantial wrong calling for the intervention of this court. J.-Having regard to the provisions of sec. 104(1) and (2) and sec. 108(1) and (2) of the "Land Registry Act," R.S.B.C., 1911, ch. 127, as amended by ch. 15, sec. 28 of the statutes of 1912 and ch. 43, sec. 63, of the statutes of 1914, the appellant company, in my opinion, had "no estate or interest either at law or in equity," in the land in question which made it a proper or necessary party to the mechanics' lien action under the judgment in which the respondent derived his title. Levy v. Gleason(1); Goddard v. Slingerland(2). Nor had it any estate or interest of which the plaintiffs in that action or the present respondent should be deemed to have had "any notice express, implied or constructive."

The plaintiffs in the mechanics' lien action were "holders of a charge or incumbrance" on the registered land in question, their liens having been duly filed against it in the Land Registry Office on the 25th of October, and action thereon commenced on the 31st of October, 1912.

Neither of the "title (or) interest" asserted by the appellant, nor of the "disposition" under which it claims, was "the registration

* * * pending" when the mechanics' liens arose, when they were registered, when action on them was brought, when judgment therein was recovered, when sale of the land was ordered, or when it was effected and conveyance thereof was made to the respondent. (May, 1912-March, 1914.)

This I take to be the effect under sec. 108(2) of the final refusal of the appellant's two applications for registration made respectively on the 22nd of May, 1912, and the 31st of October, They thereby became" cancelled and void" and questions of title must, as to " strangers, " be dealt with as if they had never been made. The conveyance of March, 1914, transferred to the respondent whatever estate or interest in the lands in question any of the defendants to the mechanics' lien action had. One of them, Passage, was the registered owner of an indefeasible fee and the holder of the only estate or interest in the lands in question of which, under the circumstances of this case, the "Land Registry Act " permits the courts to take cognizance.

By that transfer the respondent obtained " the right to apply to have such conveyance registered, " which, by his application of the 26th of June, 1914, he asserted prior (see sub-secs. 72-3) to the only application for registration of the appellant company now extant-that made on the 13th of August, 1914.

That company is, quoad the respondent, a " stranger, " in the same position as if the instrument under which it claims had been executed on the date on which that application was made.

The authorities cited on behalf of the appellant appear to be readily distinguishable from the case at bar. It has no equity such as was recognized in Barry v. Heider, et al.

There was no fraud such as formed the ground of relief in McEllister v. Biggs(2); and in Chapman v. Edwards(3). The unregistered conveyance on which it founds its claim was not made prior to the 1st of July, 1905, as was that recognized in Howard v. Miller(l). Section 104(1) applies to it and not sec. 105 (formerly sec. 75).

Moreover, although the appellant holds a transfer absolute in form, the interest which it asserts is J. only that of a chargee or mortgagee.

The advance in respect of which that interest is claimed was made on the 18th of May, 1912-the date of the transfer. The work for which the mechanics' liens were claimed began between the 1st and the 15th of May, 1912. Although it is somewhat obscurely framed, the probable purpose of clause (a) of sec. 9 of the " Mechanics' Liens Act," R.S.B.C., 1911, ch. 154, would seem to be to postpone the claim of a mortgagee in respect of advances made subsequently to the commencement of the works to the rights of the lien-holders. If the appellant had duly applied for registration it might nevertheless as a subsequent incumbrancer have been entitled to be given an opportunity in the lien action to redeem the lien-holders.

Any such right which it might otherwise have had, however, it lost through failure to make an effective application for registration until after the land had been sold to the respondent. I would, for these reasons, dismiss this appeal with costs.

C. W. St. John.

Ellis & Brown.