Majority
A syndicate owning land conveyed it to P., one of their number, in trust to subdivide and sell. P. made several subdivisions and sold lots in one with a covenant by his grantees to erect only residential buildings. The grantees conveyed the lots to a church corporation who proceeded to build a church thereon . In an action by P., in his. personal capacity, for an injunction and demolition of the church building.
Held, Brodeur J. (dissenting)
, that P. had no interest to maintain the action having before the trial sold all his holdings in the subdivision containing the church. Brodeur J. held that he owned and continued to own one lot in the area affected by the covenant of P.'s grantees.
Held also, per Idington and Anglin JJ., that as the injunction was not applied for until the church was practically completed P. was probably estopped by laches from bringing an action.
APPEAL from a decision of the Appellate Division of the Supreme Court of Ontario, reversing the judgment on the trial in favour of the appellant.
The only question raised on this appeal is whether or not the appellant could maintain his action under the circumstances set out in the head-note. trial judge held that he could but was reversed by the Appellate Division.
*PRESENT:-Sir Louis Davies, C.J. and Idington, Duff, Anglin, Brodeur and Mignault JJ.
1- F. D. Davis for the appellant.
Wigle K. C. for the respondent.
THE CHIEF JUSTICE.-I am of opinion that this appeal should be dismissed with costs for the reasons stated by Chief Justice Sir William Meredith in delivering the unanimous judgment of the Appellate Division. The grounds on which the learned Chief Justice based his opinion are succinctly and clearly stated in the following paragraph of his reasons for judgment: at I concur in these conclusions alike of law and fact and have nothing useful to add to them.
J.-The appellant and others were owners of some farm lands, of which, by and through him, as their trustee, they made a subdivision for residential purposes.
All of said subdivisions had been sold before this action except two lots, and at the beginning of the action those two were sold.
Hence at the trial he had no interest in the maintenance of such an action as this, which is brought against the respondents, as trustees and owners of some lots in said sub-division upon which a church was being built, to restrain their building there because doing so is alleged to be in violation of a restrictive covenant given appellant by some of his grantees from whom respondents acquired their title.
The substance of the said covenant is thus set forth in the appellant's factum:- The decision in the case of London County Council v. Allen seems conclusively to restrict the right recognized in Tulk v. Moxhay (2), and asserted by appellant herein to enforce such a covenant to one who owns part of the land in question.
Surely all that was within the contemplation of him and the parties giving such like covenants was to protect the area of the sub-division of which each so covenanting was buying a part. Appellant pretends herein that he holds under the trust deed from his fellow adventurers other lands not subdivided and hence owns part of the land in question and therefore comes within the terms of the judgment in the said London County Council Case (1).
The trust deed to him and under which he acted imposes no such restrictive scheme as part of his trust. It would seem as if the restrictive covenant scheme was a development of his own and was limited to the area of the sub-division in question, and though presumably his cestuis que trustent assented to the use thereof so far as that area was in question, it by no means follows that they would assent to it in regard to other sub-divisions and he certainly, in. execution 1of his trust, could not impose it, without their consent, in relation to other subdivisions. That might in one section of the property be advantageous to the sellers but in another quite the reverse.
Again it is urged that he is a trustee for those who bought other lots than those immediately in same subdivision.
I fail to find the trust anywhere expressed. Indeed the appellant seems to have carefully avoided creating such a trust, or having it imposed upon him.
Though the covenant is made with the appellant "his heirs and assigns" there is no evidence of his having assigned it, or of ever having given the purchasers of other lots the benefit thereof in any deed. I fail to find, therefore, how any of those he pretends to be taking a paternal interest in, could set up any such claim.
Hence in light of the above cited cases appellant has no interest in equity to assert such right as he does and cannot properly pretend he is acting as trustee for such others as suggested in argument. In conclusion the acquiescence and delay from at least some time in November until the 24th January, whilst the church was being built, should debar him seeking any injunction when the building was almost completed. The purpose of so building was evident in October and if an injunction was to be the remedy, it should have been applied for promptly.
The covenant does not run with the land and hence the only possible remedy was in equity which does not countenance such a course of conduct.
This appeal should be dismissed with costs.
J.-The appeal should be dismissed with costs. J.-That as owners deriving title under the covenantor the defendants are not bound to the plaintiff covenantee if he does not retain any land for the benefit of which the restrictive covenant sued Aglin J. upon was entered into is clearly established by London County Council v. Allen (1), and Formby v. Barker (2), decisions of the English Court of Appeal.
The plaintiff and certain co-adventurers formed a syndicate to purchase the Davis farm, a property in the city of Windsor, for the purpose of subdividing and disposing of it in building lots. The title was vested in the plaintiff as trustee for sale on behalf of himself and the other members of the syndicate. Three plans of subdivision of parts of the farm were prepared and registered in the following order as Nos. 579, 591, and 648 respectively. It does not appear whether any lot on plan 579 was disposed of before the registration of plan 648. The lots owned by the defendants they acquired from the original purchasers from the plaintiff, and on them they built the church which the plaintiff seeks to have removed. These lots are within subdivision 579 and .front on Moy Avenue.
* When the action was begun the plaintiff had some interest in a lot in this street and in another in Hall Avenue, both within subdivision 579, but he has since parted with both these lots and neither he nor his co-adventurers have any interest now in any lot PGE fronting either on Moy Avenue or Hall Avenue within subdivision 579.
Personally he owns no land whatever within the subdivision.
He and his co-adventurers some time since divided amongst themselves all the unsold lands shewn on plan No. 579 and his trust as to that subdivision thereupon terminated. He still owns lot No. 605 in Moy Avenue within subdivision 648.
The purpose of the covenant sued upon would seem to have been to require the owners of lots 138 and 139, Moy Avenue, on which the offending church is built, to conform to the building scheme of the syndicate whereby Hall Avenue and Moy Avenue within the subdivision covered by plan No. 579 were to remain exclusively residential streets. It would appear to have been the lands abutting on these two streets within this subdivision and no others that were intended to be benefited thereby.
While this is not explicitly stated in the record the following extract from the examination-in-chief of the plaintiff makes it tolerably clear that the trial proceeded on that footing.
Q. Which of these subdivisions are the lands in question in? A. 579. Q. The lots are included in registered subdivision 579? A. Yes. Q. There were restrictions included in your conveyance of the lots?
A. Yes.
Q. Tell us how that happened?
A. Certain streets, Moy and Hall, were restricted to residential property only.
His Lordship: Is not that a matter of writtext record?
Mr. Davis: I wish to show the general scheme. We say it was restricted property.
His Lordship: The deeds put in, I take it, contain the restrictions on which you rely?
Mr. Davis: Yes, my lord.
Q. Were all the lots sold under restrictions?
His Lordship: It might be helpful to know over what land or lands the restrictions now in issue extended.
Witness: I can show it from the plan.
The plaintiff therefore appears to have no status to maintain this action.
Moreover he represented to the church authorities, through the defendant Allworth, before the church was erected, that personally he had no objection to its being built-that his opposition was solely because as trustee of the farm he deemed it his duty to protect customers to whom he had sold. In his evidence he says that it is in their interest that this action, although not purporting to be brought by him as a trustee or in any other representative capacity, is maintained. In view of the subsequent change in the defendants' position by the erection of the church, even if he still held land within the benefit of the covenant, it would seem not improbable that suing as an individual he would be confronted by an awkward estoppel. He never was trustee for his vendees and has no status to assert any rights they may have. His trust for the syndicate, if still subsisting, would not seem to help his position, since the syndicate retains no land for the benefit of which the covenant was obtained. That trust, however, has come to an end. Finally the fact that this action was brought only when the defendants' building was nearing completion would probably afford a defence on the ground of laches to the claim for the extraordinary remedy of a .mandatory injunction for its removal.
The appeal fails and must be dismissed with costs. J. (dissenting)-The appellant's action is for an injunction restraining the defendants from erecting on the corner of Moy and Niagara Streets, in the City of Windsor, a church, contrary to the building restrictions which were stipulated in the deed of sale which the appellant made of the lots of land on which this church was to be built.
The appellant was the owner with some others of a farm which is within the boundaries of Windsor and they decided to subdivide it into building lots and the appellant was appointed trustee for his co-owners to make the sale of these lots; and a conveyance to that effect was made to him on the express covenant that building restrictions should be placed upon the lots fronting Moy Street. This covenant was fully carried out by the appellant in all the grants which he made. In 1913, a sale was made of the lots in question in this case to the Turners, with the usual building restrictions; that sale was duly registered and the defendants purchased these lots from the Turners with notice of those building restrictions. The defendants tried to obtain the consent of several of their neighbours to the construction of the church because they realized that such an edifice would be a violation of those building restrictions. They failed to obtain the consent of a larger number of interested parties who petitioned the appellant to institute proceedings to restrain the trustees from constructing the church. Hence the present action, which was maintained by the trial judge but whose decision was reversed by the first Appellate Division on the ground that the plaintiff has no interest in the question raised since he has no lots on Moy Street.
The evidence shews that the plaintiff, after his coowners entrusted him with the sale of the farm in question, had four subdivision plans prepared. The first one was made by Owner McKay on the 24th of April, 1911, and was registered under No. 579.
It covered the front part of the farm to Erie Street and contained lots which were numbered 1 to 445. It contained on Moy Street the lots 138 and 139 in dispute in this case. At the time of the institution of the action, the plaintiff was personally the owner. of lots 228 and 229 which were shewn on this survey plan No. 579, but he had sold them before the trial took place.
On the 22nd of March, 1912, the plaintiff went on with the survey of the farm from Erie Street. The same land surveyor, 1VIcKay, prepared a plan which was registered as plan No. 591.
The lots described on this plan were known as Nos. 450 to 562. Moy Street was continued on this new plan as a prolongation of the one shewn on plan 579.
There was on this latter plan a block of land called "Block A," which was then left without being subdivided; but on the 16th of November, 1912, the subdivision of this Block A was made and registered.
The lots covered by this subdivision of Block A were numbered 566 to 591 inclusively. On the 30th of January, 1913, plaintiff had the work of the subdivision of the farm continued from above Erie Street to Ottawa Street and a plan giving a description of the lots 592 to 707 was prepared by the same surveyor and registered under the number 648. On this survey is shewn the lot 605 which was situate on Moy Avenue and which was purchased by the plaintiff on the 17th of December, 1915, and which was at the time of the institution of the action and of the trial, and which is still, his property.
Those three surveys covered a great part of the farm which the plaintiff and his associates had purchased in When the plaintiff sold to the Turners on the 5th of August, 1913, the lots 138 and 139 situate on Moy Street, the three subdivision plans had been registered and the purchasers covenanted that they would not erect buildings upon these lots 138 and 139, except for residences.
When the plaintiff acquired lot 605, it was on a restrictive agreement of about the same nature as the one stipulated in the Turner contract.
The respondents acquired lots 138 and 139 from the Turners in Sept. 1917 and got notice of the restrictive clauses affecting these lots, though no formal covenant was stipulated in their deed of acquisition. They tried to obtain the consent of their neighbours for the erection of a church on these lots.
Some of them acquiesced and waived their rights.
Some others, amongst whom is the plaintiff, refused to give the necessary consent. It is possible that if the church authorities had been willing to erect a stone or brick building all the objections would have vanished. It is not very clear in the evidence, but it may be surmised that a large construction of inflanunable materials would be of such a dangerous character that these neighbours would not feel disposed to waive their rights under the building scheme which had been devised as to the nature of the constructions on Moy Avenue.
I cannot see how the Appellate Division has made the mistake of stating that the respondent had no interest in any lot on Moy Avenue.
There has been perhaps a confusion as to some lots, viz., 228 and 229, which appear on the plan 579 which the plaintiff possessed at the institution of the action but which he sold before the trial. He is asked the following: The witness evidently refers as we may see by the context to the subdivision plan No. 579. But he makes it very clear that he is still the owner of a lot, No. 605, on Moy Avenues
This lot, No. 605, appears on the subdivision plan No. 648, of the 30th January, 1913, which was the continuation of the two previous plans Nos. 579 and 591, made respectively in 1911 and 1912. These three plans had been registered long before the Turners purchased in 1913, and long, also, before the respondent purchased in 1917. This Moy Street was running in a straight line from Sandwich Street to Ottawa Street and all the lots sold on this street, including No. 605, were sold with building restrictions.
This is a case in which we should refuse to apply the principles laid down in the cases of Formby v. Barker (1); London County Council v. Allen (2); Milbourn v. Lyons (3), relied upon by the respondent, because in those cases the plaintiff had no interest in any land situate near the one in dispute.
In the present case the appellant is still the owner of a lot situate on Moy Avenue.
He is himself under restrictive obligations.
He is then entitled to rely on Tulk v. Moxhay (4), and to ask that the respondents, the subsequent purchasers of the lots 138 and 139 on Moy Avenue, be ordered to demolish the building which they have erected contrary to the covenant contained in their vendor's title.
The respondents contended also that the plaintiff should not succeed because when the church was constructed he stood by and allowed the respondents to complete their building. The work began in December and the plaintiff almost immediately saw the respondents and made his objections to the building being erected.
Correspondence was exchanged between the parties until January and, not being able to agree, the present action was instituted on the 16th of January. It cannot be contended in those circumstances, that the respondents may effectively say that the plaintiff stood by.
The judgment a quo should be reversed and the decision of the trial judge restored with costs of this court and of the Appellate Division.
J.-On the ground that the appellant at the time of the trial owned no lots in the subdivision where the church erected by the respondents is situated, and therefore had no interest in the restrictious imposed when the lots were first sold by him, I think the appeal fails and should be dismissed.
He clearly says that he owns no land in this sub- The restrictions preventing the erection of buildings not of a residential character had been imposed by the appellant on the predecessors in title of the respondents. The latter purchased the property with knowledge of these restrictions but without having, by their deed of purchase, covenanted to observe them. There is therefore no privity of contract between the appellant and the respondents.
J. On the authority, however, of Tulk v. Moxhay (1) the appellant contends that he is entitled in equity to enforce this covenant against the respondents who purchased with notice of the building restrictions. The answer is that having disposed of all land in the subdivision, he is without interest to enforce the covenant, and that therefore the doctrine of Tulk v. Moxhay (1), does not apply; London County Council v. Allen (2); Milbourn v. Lyons (3).
The appellant when asked what interest he had in the enforcement of the covenant, answered that, as trustee of the farm, it was his duty to protect the customers to whom he sold lots. . It seems to me that these customers, if they are aggrieved by the erection of the respondents' church, should assert their own rights. I am clear, however, that the appellant, having no longer any interest in the land to be benefited by the covenant, cannot now enforce the restrictions.
Appeal dismissed with costs. Solicitors for the appellant: Davis & Healy.
Solicitors for the respondents: Rodd, Wigle & McHugh. ACTION-Commission-Statute of Frauds
-Leave amend-6 V., 24, 8. 19
(Ont.); 8 V, 20, 58 (Ont.) By
6 Geo. V, ch. 24, sec. 19 amended by 8
Geo. V, ch.
20, see. 58, sec. 13 of the
Ontario Statute of Frauds, R.S.O. [1914]
ch. 102 was enacted as follows:-"No action shall be brought to charge any person for the payment of commission or other remuneration for the sale of real property unless the agreement upon which such action shall be brought shall be in writing separate from the sale agreement and signed by the party to be charged therewith or some person thereunto by him lawfully authorized.-Held,
Idington J. (dissenting)
, that this enactment is not retrospective and does not bar an action to recover commission under a contract made before it came into force.
Opinion of the Appellate
Division (48 Ont.
L.R. 120) and of the trial judge (47 Ont. L.R. 37) overruled on this point.-Judgment of the Appellate
Division (48 Ont. L.R. 120), allowing the pleadings to be amended and damages claimed for breach of contract, affirmed,
Idington J. (dissenting)
.-Per
The Appellate Division should have allowed the appeal and refused the motion for dismissal of the action. No amendment was necessary, the pleadings as they stood being sufficient.
2-Sale of land-Building restrictions- Conveyance vendee-Breach purchaser-Action original vendor-Interest--Laches.] A syndicate owning land conveyed it to P., one of their number, in trust to subdivide and sell. P. made several subdivisions and sold lots in one with a covenant by his grantees to erect only residential buildings.
The grantees conveyed the lots to a church corporation who proceeded to build a church thereon.
In an action by P., in his personal capacity, for an injunction and demolition of the church building.-Held, Brodeur J.
dissenting, that P. had no interest to maintain the action having before the trial sold all his holdings in the subdivision containing the church.
J. held that he owned and continued to
ACTION-Concluded.
own one lot in the -area affected by the covenant of P's grantees.-Held also, per Idington and Anglin JJ., that as the injunction was not applied for until the church was practically completed P. was probably estopped by laches from bringing an action.
APPEAL-Objection raised for first time- Evidence-Where the action was brought on bills of exchange the appellants rais'ed for the first time in the appeal the objection that the words "and exchange," written on the bills without indicating the rate of exchange, prevented them from being for a sum certain under the "Bills of Exchange Act," section 28.- Per Sir Louis Davies C.J., Anglin and Mignault JJ.-This objection should not be entertained now, as, if it had been raised on the pleadings or at the trial, evidence might have been adduced to show, by custom of trade or otherwise, that these words import a definite and precise liability.
CANADA................. ARBITRATION AND AWARD-Previous action-Agreement to arbitration- Larger claim fyled- Ultra petita.] The respondent, alleging that the appellants had encroached upon beach lot No. 586 of St. Roch Nord, took an action for $96,000.00, the value of 384,000 square feet. Before any contestation, both parties agreed to submit to one arbitrator the question whether such encroachment on lot No. 586 had taken place and, if in the affirmative, the amount of compensation. The respondent then fyled with the arbitrator, under protest by the appellant, a larger claim for $162,040.50, representing 681,162 square feet of land comprised in lot No. 586. The arbitrator rendered his decision allowing $51,539.58, the value of 572,662 square feet.- Held, that the arbitrator's sentence was not ultra petita.-Judgment of the 302) affirmed.
ARCHITECT -Privilege-Registration- Delay-Sale to third party ......
ASSESSMENT
AND TAXES-Municipal corporation-Right cut timber- Immovable property - Owner-Valuation
Roll-Arts. 378, 382 C.C.-Arts.
20 and 27, 649, 684, 688 M.C.
(Que.) 2 V.,
Although article
C.C., as amended by Geo.
c. 45, declares that the "right to cut timber"
is "immovable:"
Held, per
Anglin
JJ.- The possessor of that mere right cannot be placed on the valuation roll the purpose municipal taxation under the Municipal Code.-Per Duff J. The possessor of that right is not an "owner"
within the meaning of paragraph 20 article M.C.-Per Brodeur J.-The possessor of that right, if he is at the same time the owner of the standing timber, can be placed on the valuation roll.
semble,-Per
Anglin,
JJ.
Such a right is
"immovable within the meaning of that term as defined by paragraph 27 of article 16
M.C. and as used in article M.C.- Per Idington J. dissenting.
The definition of the word "immovable" by the legislature ought to be observed in the interpretation of article of the new municipal code which was enacted subsequently to the amendment of article
C.C.-Judgment of the Court
King's Bench (Q.R. 29 K.B. 309) reversed,
J.
Judicial
Fraud-Nullity-Municipal law-Practice and procedure-Irregularities-Arts.
689 and 1043,
1983, 2017, 2161
(i) C.C.-Art. 748 C.C.P.-Ars. 373, 718,
723, 734, 735, 946, 962, 998
In one 0. became owner a certain lot of land comprising two cadastral lots.
In he bequeathed it to seven legatees who were thus joint undivided proprietors, one of whom was his daughter, D., owner of one-eighth the property.
In being indebted to the respondent, D. signed a deed obligation in his favour and, as collateral security, D. transferred to the respondent all her rights in the above property.
In the respondent obtained judg- ASSESSMENT AND TAXES-Cont'd. ment for the amount then due which was never registered nor executed.
The whole property was then assessed for taxing purposes under the name of "Estate 0," without any objection on the part of the respondent who never concerned himself about the property.
In 1902, the appellants, two of the legatees, purchased about the two-thirds of the shares of their colegatees, with the exception of those of D. and others which they tried but failed to acquire.
Up to two years previous to the municipal taxes had been paid, without the evidence showing positively by whom.
In the taxes not having been paid for more than two years, the property was sold by the municipality and adjudicated to the appellants who were the only bidders. Two years later, they became absolute owners by virtue of a deed of sale from the municipality.
In the respondent took an action to set aside the adjudication and the deed of sale, alleging fraud on the part of the appellants and also irregularities in the proceedings the sale.-Held, Sir Louis Davies C.J. and Brodeur J. dissenting, that the appellants, as co-owners of the property, were not in law bound to pay the taxes or to give to the respondent notice of the sale and that there was no fraud on their part in making use of the means of a sale for taxes in order to dissolve the undivided ownership.-Per
Duff, Anglin and Mignault JJ.-The first offer, even if the only one, made in a sale for taxes, is an "enchhre" within the meaning of Art. M.C.-Per Idington, Duff, Anglin and Mignault JJ.- The party owing municipal taxes is not deprived of the right to bid and be declared the property sold by the municipality for the payment of those taxes.-Per Idington, Duff, Anglin and Mignault JJ.-The property having been entered on the valuation roll under the name of "Estate 0.," without any objection by the respondent the sale ought to be considered as made super domino.-Per Idington, Duff, Anglin and Mignault JJ. The seizure and the sale of the goods and chattels of the party owing municipal taxes is not a preliminary condition to the sale of the immovable property, the provision of Art. 962 M.C. being permissive and not imperative.spondent was not the "owner" ASSESSMENT AND TAXES-Concl'd.
eighth undivided part transferred to him by D.-Per Brodeur J. (dissenting).
The evidence is sufficient to create the presumption that the appellants were in possession, if not of the whole property, at least of the seven-eighths part of it, and they were bound in the circumstances of this case to pay all the taxes due on it or to give notice to the respondent of the sale of the property for taxes due.-Judgment of the Court of King's
Bench (Q.R. 30 K.B. 252) reversed.
3-Assessment and taxes-Land-Actual value-Assessment on adjacent lands- Principle-Ontario Assessment Act, R.S.
0. [1914] c. 195, 40 (1) and s. 69
By sec. 40 (1) of the Ontario Assessment
Act "land shall be assessed at its actual value" and by sec. 69 (16) "the court may, in determining the value at which any land shall be assessed, have reference to the value at which similar land in the vicinity is assessed."-Held, that assessing land under these provisions the governing principle is to ascertain its actual value.-Held, further, Brodeur J.
dissenting, that in this case the assessment was made chiefly, if not entirely, on consideration of the value at which adjacent lands were assessed and the actual value was disregarded.
The case was, therefore, sent back to the tribunal appealed from to have the land assessed on the proper principle.
RoYDs..........................
BILLS AND NOTES-Bills and notes- Acceptance- Holder in due course-Damaagainst drawer-Set exchange"-Dejinite liability.] The appellants agreed to buy certain goods from
A., who assigned, for an indebtedness, to the respondent bank his interest in the contract. A. later on shipped the goods, attached bills of lading to the drafts and delivered them to the bank, which credjted A. with the proceeds of the drafts and forwarded them with the bills of lading to its branch where appellants accepted them and received the bills of lading. The bank brought action on the drafts but the appellants, having a claim for damages suffered by them by reason of A.'s breach of contract, set it off against the bank's claim.-Held, Duff J.
dissenting, that the acceptance of the
BILLS AND NOTES-Continued. drafts by the appellants, with full knowledge of A.'s breach of contract, implies an acknowledgment of unconditional liability towards the respondent bank, which had no notice of the breach. The appellants raised for the first time in this appeal the objection that tlfe words "and dxchange,"
written on the bills without indicating the rate of exchange, prevented them from being for a sum certain under the "Bills of Exchange Act," section 28.-Per Sir Louis Davies C.J., Anglin and Mignault JJ. This objection should not be entertained now, as, if it had been raised on the pleadings or at the trial, evidence might have been adduced to show, by custom of trade or otherwise, that these words import a definite and precise liability.-Per Sir Louis Davies C.J. and Anglin J. If these words have any application at all in the case of these inland bills, they cannot be taken to deprive the instruments before us of their character as bills of exchange because of any indefiniteness or uncertainty in the amount for which the acceptors became liable.-Judgment of the Appellate Division (15 Alta. L.R. 482) affirmed, Duff J. dissenting.
-Conditional sale agreement-Promissory notes- Notes on same sheet as agree- Negotiability due course-"The Sale of Goods Ordinance" (N.W.T.) 1915,
The appellant bought a horse from one Dygert for $1,700, paid $300 cash and gave two notes of $700 each.
Below each note was written an agreement providing that the property in the horse would not pass until the balance of the purchase price was paid; and stipulating that "no older of said notes by or to whom * * said notes
* * have been discounted *
* shall be affected by the state accounts between the subscriber and the promisee or by any equities existing between the subscriber and the promisee, but shall be deemed to be a holder in due course and for value of the notes held by him."
Dygert indorsed the notes to the respondent bank for value. The horse died before the notes were paid and the sale was then avoided between the appellant and Dygert under "The Sale of Goods Ordinance."-Held, that the respondent bank was entitled BILLS AND NOTES-Concuded.
to recover on the notes from the appellant.-Per Idington, Anglin, and Mignault JJ.-Under the agreement, the respondent bank was a holder in due course, though it had notice of the contract between
Dygert.-Per Idington, Duff and Mignault JJ. These notes were severable from the agreement and constituted notes.-Judgment the Appellate Division ([1920] 3 W.W.R.
542) affirmed.
BANK......................
BORNAGE-Public road-Dedication- Prescription-Art. 2193 C.C........
CASES
1-Abell v. County of York (45 Ont.
L.R. 79) rev.....
.............
2-Best v. Beatty (47 Ont. L.R. 263' rev .............
................
See 7.
3-Cahill v. Strand Theatre Co. (53 N.
S. Rep. 514) aff .................
4- Connolly v. Consumers' Cordage Co.
89 L.T. 347) fol................
See NEW 1.
5-Cook v. Archibald (Q.R. 29 K.B.
364) aff..........................
6-Cushing v. Knight (46 Can. S.C.R
555) disc.........................
See 6.
7-Davidson v. Norstrant (15 Alta.
L.R. 252) rev.....................
See 6.
8-Deshve v. Legault (Q.R. 29 K.B.
375) aff.....................
....
CASES-Continued.
Fuller v. Garneau (15 Alta. L.R. 194) rev.......................... 10-Geffen v. Lavin (15 Alta. L.R. 556) aff.......................... 11---Geddes Bros. v. American National Red Cross (47 Ont. L.R. rev. 12--Girard v. Montreal Tramways Co. 13-Horner v. Canadian Northern Ry. Co. ([1920] 3 W.W.R. 909) aff... 14- Hudon v. Roy (Q.R. 19 K.B. 68) overruled......................... 15--Isman v. Sinnott (12 Sask. L.R. 445) var......................... 16-Kelly v. Watson (15 Alta. L.R. 587) rev.......................... 17-Kidston v. Stirling and Pictairn, Ltd. ([19201 3 W.W.R. 365) rev ..... 18-King, The, v. Kierstead (45 N.B. Rep. 553) overruled............... 19- King, The, v. Magdall (15 Alta. L.R. 313) aff..................... 20-Marconi Wireless Telegraph Co. v. Canadian Car and Foundry Co. (19 Ex. C.R. 311) aff.....................
21- Metgermette Nord v. Breakey (Q.R. 29 K.B. 309) rev................. 22- Monticello State Bank v. Killoran 3 W.W.R. 542) aff......... CASES-Concluded.
23-Mulcahy v. Edmonton, Dunvegan and British Columbia Ry. Co. Alta.
L.R. 464) aff ....................
24- Norther
Alberta
Natural Gas
Development Co. v. City of Edmonton (15
Alta. L.R. 416) aff ................
25-Parrott v. Western Canada Accident and Guarantee Ins. Co. Sask. L.R.
405) aff..........................
26-Quebec Harbour Commissioners v.
La Compagnie du Pare St. Charles (Q.R.
29 K.B. 302) aff..................
27- Rex v. Anderson Alta. L.R. 102)
Approved.....................
28-Royal Trust Co. v. Minister
Finance of British Columbia W.
W .R. rev.....................
29- Security Trust Co. v. Sayre (15
Alta. L.R. aff .................
30---Smith v.
Upper Canada College
(48 Ont. L.R. 120) aff ............
31-St.
Henri Taillon v. Boily (Q.R.
29 K.B. 146) rev.................
32- Union Bank of Canada v. Antonion
Alta. L.R. 482) aff .............
CIVIL CODE
1-Art.
381 (Immovables) ........
2-Arts.
2064-5 (Colonization Works)
.................................
3- Art. 2193 (Prescription) .......
Premium Payment - Appropriation.]
having subscribed for fifty shares of the company respondent, they were allotted to him at $120 per share being at a premium of $20 per share. The appellant sent his cheque for $1,500.-Held, Brodeur and Mignault JJ. dissenting, that the $1,500 should be apportioned pro rata between the premium and the par value of the shares.-Judgment of the Court of Appeal ([1920] 3 W.W.R. 365) reversed, Brodeur J. dissenting. KID- 2-Contract--Gas company-Maximum rate-"Existing rate"-"Public Utility"- "Public Utilities Act," 'Alta.) s. 20 and s. 23
The maximum rate stipulated in a contract between a gas company and a municipal corporation, while the company has not yet by by-law otherwise fixed any rates which it proposes to charge, not an "existing rate" as used in section 23 of the "Public Utilities Act" of Alberta; and the Board of Public Utility Commissioners has no jurisdiction to modify it.-Per Sir Louis Davies C.J. and Anglin J.
gas company, which has a number of wells drilled and ready for operation but has not yet constructed pipe lines to carry their output, nor begun to render service to the public, is a "public utility," within the purview the "Public Utilities Act."
Idington J. contra.-Judgment of the Appellate Division (15 Alta. L.R. 416) affirmed. CONTRACT-Sale of goods-Abandonment vendor -Acceptance
- Notice- Subsequent acts of vendor.-G., by contract in writing, agreed to sell goods to the American Red Cross but before any were delivered wrote the latter that he would be unable to carry out his contract. The Red Cross then made an entry on its books that the contract was cancelled.- Held, reversing the judgment of the Appellate Division (47 Ont. L.R. 163) Mignault J. dissenting, that though the Red Cross did not give notice to G. that the abandonment was accepted the contract was terminated as the subsequent acts of and especially his failure to deliver the goods at the times specified showed that he treated it as at an end and believed that the other party had elected to accept.-Per Anglin J. The CONTRACT-Continued.
conduct viewed in the light of his letters and the terms of the contract, amounted to an intimation of abandonment and gave the Red Cross an option to rescind which was sufficiently exercised when delivery tendered.
RED;
2-Construction - Essential term - Special meaning-Parol evidence-Company
Premium
Payment- Appropriation.
Both parties to a contract in writing agreed that one of its terms was not used in the ordinary sense and parol evidence to explain its special meaning was received.-Held, Brodeur J.
contra, that, such term being essential and the evidence showing that the parties were not ad idem to it, there was no contract. Idington J. was of opinion that there was a contract but the damages should be assessed by a reference and not as the Court of Appeal directed.-Per
Brodeur J. (dissenting)
.-A contract is binding upon the parties notwithstanding their different interpretations of its terms; and it is for the court to determine which of these interpretations must be upheld according to the surrounding circumstances which can be proved by oral evidence.-The appellant having subscribed for fifty shares of the company respondent, they were allotted to him at
$120 per share being at a premium of $20 per share.
The appellant sent his cheque for $1,500.-Held, Brodeur and Mignault
J.J. dissenting, that the $1,500 should be apportioned pro rata between the premium and the par value of the shares.-Judgment of the Court of Appeal ([1920] 3
W.W.R. 365) reversed, Brodeur J. dissenting.
PIT- 3-Sale of land-Memo. in writing- Statute of Frauds - Additional terms.
Pursuant to an agreement to purchase her property the vendor signed the following document: "Received from A.
Garden Road.
Purchase price ten thousand five hundred dollars. Balance on delivery of deed."
In an action by the for specific performance.- Held, that this document contained all the essential terms of a contract for the sale of land and complied with the conditions of see. 7 of the Statute of Frauds.
CONTRACT-Continued.
R.S.N.S.
[1900] ch. 141.-It was contended that the time for completion of the purchase was a term of the contract and should have appeared in the written memorandum.-Held, that the finding of the trial judge that the time for completion was agreed on after the document was signed should be accepted and it was, therefore, not a term of the original contract but an arrangement for carrying it out.-Per Duff J.-This defence was not pleaded nor submitted to the jury and, as a question of fact, could not be raised after verdict since it was not disclosed so as to challenge the attention of the plaintiff.-It was also alleged that the property sold was mortgaged and the purchase was only of the equity of redemption which the memorandum did not disclose.-Held, that the purchase was of the whole property and not of the equity of redemption only and that the contract contained in the memorandum could be wor'ked out as if it provided for the mortgage,
4- Illegality-Public order -Questions raised only at argument-New trial-Arts. 989, 990 C.C.-Sect.
(f.) Cr. Per Duff, Anglin, Brodeur and Mignault JJ.-Where a contract sued upon has been held void for illegality on a ground not pleaded and not referred to at the trial until after the close of the evidence, and the circumstances relied upon to establish such illegality may be susceptible of explanation, a new trial should be directed to afford the plaintiff an opportunity to adduce evidence to meet the defence of illegality. Connolly v. Consumers
Cordage Co.
L.T. followed.-Per Anglin and Mignault JJ. In the case of a sale to the Government a contract by the vendor to pay an agent, engaged by him to procure the highest possible price, all that such agent could obtain over a figure fixed by the vendor as the minimum net price he would accept is not per se illegal as contrary to public order.-Per Idington J. (dissenting).
Upon the evidence, the option agreement alleged by the appellants had expired and had never been renewed.] & Co. DAVIE........... 5-Part performance-Terms vague- Specific performance-Construction-Powers of the courts. Though, where there has been part performance of an agreement, the courts, when asked to decree CONTRACT-Continued.
specific performance, should struggle against any difficulty arising from vagueness in the terms of the agreement in order to effectuate the real intention of the parties, they cannot do what would amount to making an agreement as to some of the essential terms on which the parties were never ad idem.-Judgment of the Appellate Division Alta. L.R.
587) reversed,
J. dissenting
6-Sale-Sale of land-Option under
Condition tion- Nominal-Expressed as "now paid"- Non-payment-Specific performance-Subsequent conduct-Parol evidence-Statute of Frauds.] The respondent was purchasing some land from a company which the appellant was the sales agent for $86,400 and asked the latter to join him in the undertaking.
before doing so, wished to see personally his principals who were resident in the
United States in order to obtain their consent.
The respondent then entered into an option agreement under seal whereby in consideration of the sum
$100 "now paid," of which receipt was acknowledged, and of the payment of half of the cash instalments due in virtue of the purchase agreement, he assigned to the appellant an undivided halfshare interest in the land.
The above sum of was in fact neither paid nor demanded.
The respondent then proceeded to complete the original purchase agreement, paid the cash instalments amounting to $10,000 to the owners and sold part of the land at a profit.
appellant, after having obtained the approval of his principals, sent to the respondent the sum of $5,000 with interest thereon within the delay specified in the option; but the respondent returned and refused to carry out the agreement.
The appellant sued for specific performance.-Held, Duff and Mignault JJ.
dissenting, that the option agreement was binding upon the respondent.
Cushing v. Knight (46 Can. S.C.R. 555)
discussed.-Per Sir Louis Davies C.J.- The question whether the giver of the option was bound thereby, without the payment of the is entirely one intention, and, in this case, there was nothing to indicate that it was the intention of the parties that such payment
CONTRACT-Continued.
should be a condition precedent to the respondent being bound, both parties understanding that the down payment was immaterial and negligible.-Per Sir Sir Louis Davies C.J.-Upon the evidence, conduct and correspondence of the parties, the option agreement was to become operative only when the consent of the appellant's principals had been obtained; and after such consent there was no unreasonable delay on appellant's part in tendering to the respondent the moneys stipulated in the agreement.-Per Idington J. When a contract for an option under seal and purports to bind for a specific time, assented to by the covenantee, its binding effect cannot be affected by any omission to pay the consideration declared to have been received, unless and until actual payment has been demanded and refused.-Per Duff J., Anglin and Mignault JJ.-The actual payment of the sum of $100 was made a condition precedent to the instrument becoming effective as an option, and the consideration cannot be treated as a mere nominal one.-Per Anglin J. But the subsequent conduct of the respondent has been such as to preclude him from relying upon the non-fulfilment of the condition.
Duff J. contra.-Per Anglin J.
And parol evidence of the facts warranting this inFerence is admissible since it does not amount to such a variation of the terms the contract that verbal proof of it would offend against either the rule in regard to contracts reduced to writing or the Statute Frauds.
Duff J. contra.-Per Anglin J.
Assuming that the payment of was a condition precedent to the existenceof a binding option, the respondent's offer to sell one-half interest in the lands purchased was not expressly or impliedly revoked before its acceptance by the appellant within reasonable delay.-Per Duff and Mignault JJ. (dissenting).- The payment of was one the facts which the appellant, relying upon the existence of the option, had to establish in the absence of circumstances dispensing with the performance of this essential condition.-Per Duff J. (dissenting). The grant of an option has the effect vesting in the optionee an interest land, and, if given for valuable consideration, not revocable; and the giver of the option is not entitled to CONTRACT-Concluded.
break it on offering to pay damages.- (15 Alta. L.R. 252) reversed, Duff and
JJ. (dissenting)
.
7-Sale-Vendor or trustee-Rights benefciaries-Representation-Term thereabouts."] The vendor may be a trustee for others of the money payable by the purdhaser but his beneficiaries have no rights but those given by the contract and if, in carrying out the sale, the purchaser incurs a loss for which the vendor is liable it may be deducted from the purchase money.-In a contract for sale of a going concern the liabilities were stated to be $36,894, "or thereabouts."-Held, that an excess of $857 was too substantial to be covered by the qualifying expression.-Judgment of the
Appellate Division (47 Ont. L.R. 265)
v. BEST........
8-Gas company-Rates-Existing rate- Public Utility....................
9--Agreement for sale-Promissory notes-Severance... ...............
See NOTEs 2
CRIMINAL LAW-Seduction under promise of marriage-Previous illicit connection-Previous chastity of complainant-Findings of the jury-Arts. 210, 212,
1102, 1140 Cr.
The appellant was convicted for having, under promise of marriage, seduced and had illicit connection with an unmarried female of previously chaste character under the age of 21 years. The girl complainant, at the trial, admitted that she had had illicit connection with the appellant on one previous occasion under mutual promise of marriage.-Held, Duff and Brodeur
JJ. (dissenting)
, that the fact of the previous seduction did not preclude the jury from finding the complainant to be "of previously chaste character"
within the meaning of article 212 Cr. C., the question whether or not the facts and surrounding circumstances could justify such a conclusion being one to be determined by the jury alone.-Judgment of the Appellate Division (15 Alta. LR. 313; [1920]
W.W.
R.
affirmed, and Brodeur JJ. dissenting.
THE KING.....................
CRIMINAL LAW-Continued. 2-Bribery-Violation of provincial Act- "Administration of justice"--Cr. as. 164-(C) Vict., s. 3-"The Saskatchewan Temperance Act," Sask., S. (1917) c. 23.]
A bribe given in order to induce a police officer not to proceed against the party giving it for violation of "The Saskatchewan Temperance Act" is given with intent to interfere with the "administration of justice" under section 157 of the Criminal Code. Idington J. contra.]-Per Idington J. (dissenting). Section 157 of the Criminal Code can only herein be held relevant to a peace officer or public officer as defined in the interpretation clause of the said code; and appellant was not acting within such definition but merely performing a duty of inspecting books under the "Saskatchewan Temperance Act," and reporting, which could have been discharged by anyone. The offence in question was one against section 39 of the said
"Temperance hence impliedly excluded by section 154 of the said code from falling within section 157 3-Speedy trial-Election-Jury trial- Requirement the Attorney-General- Sections 446 (a), 690, 825, 826, 827, 828, 830, 833, 873, 1018, 1024 Cr. C.-(D.) 32-33 Vict., 29, 28-(D.) 8-9 Ed. VII, c. 9, s. 2.]
The appellant was accused of an offence, punishable by imprisonment for a period exceeding five years and for which he had the right of election to be tried by a judge or a jury. He first elected to be tried by a jury and, after the preliminary hearing, he was committed for trial. Whilst still in custody of the sheriff, he wrote to the latter that he was electing for a speedy trial and the sheriff notified the judge of the sessions of this election. He was then brought before a district magistrate and there elected for a speedy trial. Later on, the Attorney-General signed a declaration that the indictment has been on his order "brought before the grand jury."
It was so brought, a true bill was found and the appellant tried before a jury and found guilty.]-Held, Idington J. dissenting, that the conviction of the appellant by a jury was legal.- Per Sir Louis Davies C.J. and Duff J. The requirement signed by the Attorney- General was in compliance with section 825 Cr. C., as amended by 8-9 Ed. VII, S.C.R. VOL. LXI.] CRIMINAL LAW-Concluded.
c. 9, s. 2. Idington J. contra and Anglin
J. semble.-Per Anglin, Brodeur and
Mignault JJ. The election for a speedy trial made by the appellant before a district magistrate was not valid, as it should have been made before the residing judge of the sessions of the peace, according to section 827 Cr. C.-Per Idington
J. (dissenting).-The election by the appellant for a speedy trial, contained in his letter to the sheriff, was valid, as being made in conformity with s.s. 2 of s. 828 Cr. C., and any subsequent irregularity could not affect the appellant's rights.
......
4-Trial-Plea of insanity-Charge to jury-Proof-Beyond a reasonable doubt.]
On a criminal trial where the prisoner pleads insanity it is misdirection for the judge to charge the jury that insanity must be proved beyond a reasonable doubt. Rex v. Anderson (7 Alta. L.R.
approved.
The King v. Kierstead
(45 N.B. Rep. 553) overruled.
J dissents
CROWN LANDS-Crown's Land Act- Crown's agent-Receipt-Title landarts. 1559,
1562.]
appellant, by a petitory action, asked to be declared owner of certain land subject to the Crown's Lands Act and invoked as his title the following receipt delivered to him by the Crown's Lands Agent:
Lands
Agency. S1.00.-Dec.
29th,
1910.-Received
Addlard
Diotte the sum of one dollar as fee for registration (description of land).
Wm.
Clarke, agent."]-Held, that the terms of such a receipt do not fall within the provisions of articles 1559 and 1562 R.S.
Q., as the money was not paid on account of the purchase price.
2-Sale-Sale of land-Agreement-Reservation of mine sand minerals to Crown- Implied powers-Whether greater than those expressly reserved in Crown grant.]
The reservation, in a Crown grant, of the mines and minerals "with full power to work the same and for this purpose to enter upon and use or occupy the * * * lands or so much thereof and to such an extent as may be necessary for the effectual working of the said minerals
*
*
* confers greater powers than those implied in a bare reservation in an agreement for the sale of the land so
CROWN LANDS-Concluded.
granted of "all mines and minerals." Sir Louis Davies C.J. and Idington J. dissenting.-Per Duff, Anglin and Mignault JJ. The terms of both reservations imply the right to win, get at and take away the minerals; but the terms of the reservation in the Crown grant may imply furthermore the right to cause subsidence or destruction of the surface.-Judgment
Appellate Division (15 Alta. L.R. 194) reversed, Sir Louis
Davies C.J. and Idington J. DEBTOR AND CREDITOR - Mortgage-First and third mortgagee-Foreclosure of first and sale-Action on ant third
2- Transfer of property-''A la charge de 'hypothbque-Personal obligation. DEDICATION-Public road-Law of DOMICILE-Succession duty-Property in province other than that of domicile- Method of taxation ................
EMPLOYER AND EMPLOYEE ESTOPPEL-Sale land-Building restrictions-Injunction-Delay in applying.............................
EVIDENCE- Negligence-Jury V trial- Res ipsa loquitur-Burden of proof.. FORECLOSURE
HYPOTHEC
Nuisance performance-Crowd on street-Obstruction! INSANITY-Criminal law-Plea insanity-Charge to jury-Proof-"Beyond a reasonable doubt" ..................
INSURANCE,
ACCIDENT-Accident and guarantee-Breach of contract-Insurer's knowledge-Continuation of defence in action against insured-Waiver of condition-Estoppel.] The respondent held a policy of insurance in the appellant indemnify against accidents to his employees.
An employee was injured and brought action against the respondent.
The appellant, in pursuance of a condition of the policy, assumed the defence.
During the trial, the appellant learned, by the respondent's own admission, that the machine which caused the accident had been unguarded in breach of a condition of the application and of the policy. But the appellant continued the defence down to judgment awarding damages to the employee. The respondent brought this action to recover the amount paid by him. The appellant pleaded that owing to the respondent's breach of the condition of the policy, it was relieved from liability.- Held, that the appellant company, having assumed and continued the defence with knowledge of the fact that the machine was unguarded, waived any right to dispute liability under the policy for such breach of condition.-Judgment of the Court of
Appeal (13 Sask. L.R. 405) affirmed.
LEGAL MAXIMS-Volenti non fit injuria...........................
2- Res Ipsa Loquitur ........
. ..
MASTER AND SERVANT-Workmen's
Compensation Act-Tramways Company- Free transportation-Injury to employee- Liability-R.S.Q.
arts. 7321
The respondent, an employee of the company appellant, when injured, was returning from his work to his home in a tramcar on which he was entitled to be carried free under certain provisions in the company's regulations.-Held, that the respondent had a right to compensation under the Quebec Workmen's Compensation Act, as the injury was occa- MASTER AND SERVANT-Continued. sioned "by reason of or in the course of (his)
work,"
within the meaning of article 7321 R.S.Q. (1909.)-Judgment of the Court of Review (Q.R. 57 S.C. 394) affirmed
2-Railways-Injury to servant-Knowledge of danger-Volenti non fit injuria- Liability of master.] The respondent, employed by railway company as roadmaster, had been specially instructed to repair a certain section of the road-bed which was in a dangerous condition owing to bad rails. respondent frequently applied for new rails which the appellant company did not supply. While, in the course of his employment, the respondent was travelling over that section in a hand-car, an accident occurred through the car leaving the tracks and he was injured.-Held, Sir Louis Davies C. J. dissenting, that the appellant company was liable, the defence of volenti non fit injuria not being applicable under the circumstances.- Judgment of the Appellate (15 Alta. L.R. 464) affirmed, Sir Louis Davies C. J. dissenting
Negligence-Railway-Jury trial- Res ipsa loquitur-Burden of proof- Master and servant-N.W.T. Ord. (1915), c. 98.]
The respondent's husband, a brakesman in appellant's employ, was killed by the derailment of his train. The derailment was caused by an unlocked switch being partly open. At the trial, the respondent simply gave evidence of the acdident and of the damages claimed by her, resting her case on the doctrine of res ipsa loquitur. The appellant then moved for a non-suit on the ground that this doctrine was not applicable in a case between master and servant.
The motion was refused and the appellant proceeded to produce evidence to rebut the prima facie case negligence. The jury rendered a verdict in favour of the respondent.- Held, Mignault J. dissenting, that, upon the evidence, the verdict of the jury that the condition of the switch was die to the negligence of the appellant must be upheld.-Per Anglin, JJ. In province of Alberta the doctrine of res ipsa loquitur can be invoked by a servant seeking to hold his master liable MASTER AND SERVANT-Concluded.
injuries sustained in the course of his employment, since the defence of common employment has been taken away by statute; and it was incumbent upon the appellant to rebut the presumption negligence resulting from the application of the doctrine.-Per Idington, Anglin and Brodeur JJ. The sufficiency of the evidence adduced by the appellant to rebut such presumption wholly within the province of the jury.-Per
Mignault J. (dissenting)
.
The evidence adduced by the appellant having completely rebutted the prima facie case of negligence resulting from the rule res ipsa loquitur, and the respondent not having made any affirmative proof of negligence of the appellant, the jury was not justified in finding a verdict in favour of the respondent.-Judgment of the Appellate
Division W.W.R. 909) affirmed,
J.
RY. Co.
MINES
MINERALS grant-Reservation-Implied powers. 450
MORTGAGE-First and third mortgage- Foreclosure of first mortgage and sale land-Recovery under covenant on third mortgage-Collateral security discharged.] The appellant, having purchased a property from the respondent, transferred to him, as security for the balance of the purchase price, a first and a third mortgage due by one Yandt upon another as collateral security, he also gave a mortgage on the property bought, payable at dates corresponding with the respective due dates of the above two mortgages.
In course of time, the respondent obtained foreclosure under the first mortgage and sold the land.
The appellant then claimed a discharge of the collateral mortgage.- Held that, notwithstanding the foreclosure of the first mortgage and the sale of the foreclosed property, the respondent could still recover under the appellant's covenant for payment contained in the third mortgage and the appellant was not entitled to the discharge of the collateral mortgage until the payment the third mortgage.-Judgment of the
Court of Appeal(12 Sask. L.R. 445; 3
W.W.R. 719) varied. IsuAN SiNuorr
2-Transfer of property-"A la charge
'hypothbque"-Personal obligation- MORTGAGE-Concluded.
Articles 1508, 2016, 2056, 2065, The mere taking of a transfer property subject to a hypothec,-"A la charge de 1'hypothbque"-does not, under the civil law of Quebec, per entail any personal obligation on the part of the transferee to pay the debt for which the hypothee is security.-Judgment of the 375) affirmed.
3-Order allowing purchase mortgagee-Execution for balance of claim- Foreclosure-"The Land Titles Act," (Alta.) S. 37, s.
An order which a mortgagee becomes the owner the mortgaged land as purchaser at a named price with leave to issue execution for the balance of his claim, is not an order for foreclosure operating as satisfaction of the debt under section 62 "The Land Titles Act" as amended chapter 37 of the Alberta Statutes, 1919.- Per Sir Louis Davies C.J. and Idington and Brodeur JJ. (affirming the judgment of the Appellate Division).-Though the order should have been set aside and a proceeding de novo directed, the decision of the Appellate Division that, notwithstanding the terms of the order, the mortgagee may still pursue his remedy the balance of his claim should not be disturbed, the question involved being one of practice and procedure.-Per Duff, Anglin and Mignault JJ. (reversing said judgment).
The order should be set aside as the doctrine of equity regard to mortgages preclude the making of an order which purports uno flatu to vest the mortgaged property in the mortgagee as purchaser free from all equity of redemption and to enforce the personal liability of the mortgagor some part of the mortgage debt. A mortgagee cannot have both the mortgaged property and the mortgage money- Per Duff and Anglin
JJ. The sale sanctioned by the order was not a sale the land within the meaning of s.s. 2 of 62 of "The Land Titles Act" and the mortgagee is therefore prohibited by that section issuing execution under his judgment on the covenant.- The sale contemplated by the statute is a sale to a stranger, not to the mortgagee.- Judgment of the Appellate Alta. L.R. 17; W.W. R. 634) affirmed on equal division of the court. & V. ........... Art. (Irregularities) ........
See 1.
Arts. 20 and 27 (Interpretation). 237
See 1.
Art. (Meetings of Council). .
5- Art. (Roads).............
6- Art. (Valuation roll) ......
See 1.
Art. 962 (Municipal taxes) ....
Art. (Tax sale) ..........
MUNICIPAL
CORPORATION-Bylaw-Special meeting- Notice-Absence councillor-Minutes of the meeting-Closing road between two municipalities- Consent of the county council-Articles
505, C.C.-Articles
332, 334, 340, 344, 345, 355, 467,
473, 474, 475, 519 M.C.-R.S.Q.
articles 2064, 2065.]
The notice for a special meeting of a municipal council having been given to all the councillors a non-registered letter sent to them mail, instead of the notice being served each councillor individually as required by the municipal code, the minutes of the meeting could not and did not mention that such notice had been served on one of the councillors who was absent (Art.
M.C.).
At the trial it was proved,
(which evidence was objected to by the appellants)
by this councillor's own admission, that he had in fact received notice in due time.-Held, Anglin J.
dissenting, that the proceedings of the council at the meeting were irregular and null.
Hudon v. Roy dit Desjardins (Q.R.
K.B. 68) overruled.-Per Anglin J. (dissenting). Any irregularity that there may have been in the giving of notice of the meeting was cured by article M.C.colonization road, which passed through the municipality respondent and a neighbouring municipality, had been opened by the provincial authorities long before the existence of both municipalities.
municipality respondent changed, within
MUNICIPAL CORPORATION-Cont'd. its limits, the course of this road without changing the place where it connected with the neighbouring municipality, and passed a by-law closing the other road.- Per Anglin and Mignault JJ. It was not necessary for the municipal council to obtain, previously, the consent of the county council.
(Art. 519 M.C.). and Brodeur JJ. contra.-Judgment of the Anglin
J.
BoILY TAILLON......................... 2- Right to cut timber-Immovable property-owner-Valuation Roll-Arts. 378, 381, 382 C.C.-Arts. s.s. 20 and 27, 649, 684, 688 M.C. (Que.) V,
Although article 381 C.C., as amended by 2 Geo. 45, declares that "the right to cut timber" is "immovable." -Held,
Per Duff, Anglin and Mignault JJ. The possessor of that mere right cannot be placed on the valuation roll for the purpose of municipal taxation under the Municipal Code.-Per Duff J. possessor of that right not an "owner" within the meaning of paragraph 20 of article M.C.-Per Brodeur J. The possessor that right, he at the same time the owner of the standing timber, can be placed on the valuation roll. Anglin J. semble.-Per Anglin, Brodeur and Mignault JJ. Such a right is not "immovable property" within the meaning of that term as defined by paragraph 27 of article M.C. and as used in article M.C.-Per Idington J. dissenting. The definition of the word "immovable" by the legislature ought to be observed the interpretation of article 651 of the new municipal code which was enacted subsequently amendment article 381 C.C.-Judgment of the Court of King's Bench (Q.R. 29 K.B. 309) reversed, Idington J. dissenting. NORD........................... 3-Highway-Dedication - Reservation of easement-Title soil-Ontario Municipal Act, s. 433-3 Edw. VII, s. 601 (Ont.).] Prior to the soil and freehold of roads and highways in Ontario were vested in the Crown and the roads and highways themselves in the respective municipalities subject to any rights in the soil reserved by the person who laid out such road or highway." Sec. 433 of the Municipal Act, MUNICIPAL CORPORATION-Conc'd.
repealed these provisions and vested the soil and freehold of roads and highways in the municipalities without any reservation of right. Prior to land had been dedicated for a highway with the right reserved to maintain a raceway across it.-Held, Davies J. dissenting, that sec. 433 did not take away the right so reserved; to effect that purpose clear and unambiguous language is necessary and a mere inference from the repeal provisions protecting rights reserved is not sufficient; and that the purpose sec. 433 was to do away with the confusion arising from the joint proprietorship over roads and highways to which effect can be given without causing the injustice of taking private property without compensation.-Judgment of the
Appellate Division (45 Ont. L.R.
reversed and that of the trial judge
Ont.
L.R.
restored.
YORK.................
4-Municipal corporation-Public road
-Sidewalk-Prescription - Dedication- Servitude-Art. 2193
On an action en bornage instituted by the appellant, the respondent claimed the ownership of a strip of land, used as a sidewalk in front the appellant's property, by virtue documentary title, by dedication and by prescription of thirty years.
The appellant denied the existence of the documentary title and urged that the respondent's possession was not unequivocal, alleging that, during that possession, the steps leading into his house encroached on the side-walk, the cornices projected over and the drain crossed the strip of land.- Held, Duff J. dissenting, that the corporation respondent is the owner of the strip of land.-Per Anglin, Brodeur and
Mignault JJ. The encroachments alleged by the appellant did not have the effect vitiating the respondent's title.-Per
Duff and Brodeur JJ. A municipal corporation can acquire a public way prescription.
J. dubitante.spondent became owner of the strip land by way of dedication duly accepted.- Per Duff and Brodeur JJ. The common law doctrine of dedication is not a part the law of the province of Quebec.
5--Contract -Gas
Rates
Existing rate-Public utility ........
NEGLIGENCE-Accident - Damages- Jury's. findings
New trial.] The respondent was injured placing his hand on a defective electric motor in motion.
He alleges that he was obliged to do so to ascertain if the motor was overheated; but the appellant contends that he acted contrary to instructions. The principal findings of the jury were: Was the accident caused the common fault of the plaintiff and the defendant; and if so, state in what the fault of each one consisted?
Yes. The defendant is to blame for having had a defective machine in operation, knowing that it was defective.
The plaintiff is to blame for having exceeded what he was told to do, by getting up and putting his hand on the motor while in motion and taking unnecessary risks.
Unanimous." The verdict of the jury, awarding $3,000 to the respondent, was affirmed by the Court of King's Bench.-Held, Idington J. dissenting, that a new trial should be ordered, as the jury's findings are obscure and inconsistent.
Railway
Jury trial ipsa loquitur-Burden of proof-Master and servant-N.W.T. Ord.
98.] The respondent's husband, a brakesman in appellant's employ, was killed by the derailment of his train. The derailment was caused by an unlocked switch being partly open.
At the trial, the respondent simply gave evidence of the accident and of the damages claimed by her, resting her case on the doctrine of res ipsa loquitur. The appellant then moved for a non-suit on the ground that this doctrine was not applicable in a case between master and servant. The motion was refused and the appellant proceeded to produce evidence to rebut the prima facie case of negligence. The jury rendered a verdict in favour the respondent.- Held, Mignault J. dissenting, that, upon the evidence, the verdict of the jury that the condition the switch was due to the negligence the appellant must be upheld.-Per Anglin, Brodeur and Mignault JJ. In the province of Alberta the doctrine of res ipsa loquitur can be invoked by a servant seeking to hold his master liable injuries sustained in the course of his employment, since the defence of common employment has been taken away statute; and it was incumbent upon the appellant to rebut the presumption of NEGLIGENCE-Concluded.
negligence resulting from the application the doctrine.-Per Idington, Anglin and Brodeur JJ. The sufficiency of the evidence adduced by the appellant to rebut such presumption wholly within the province of the jury.-Per
Mignault J. (dissenting)
.
The evidence adduced by the appellant having completely rebutted the prima facie case of negligence resulting from the rule res ipsa loquitur, and the respondent not having made any affirmative proof of negligence the appellant, the jury was not justified in finding a verdict in favour of the respondent.-Judgment of the Appellate
Division W.W.R. 909') affirmed,
J.
RY. Co. .....
And See
And See
NEW TRIAL-Contract
Public order-Questions raised only at argument- New trial-Arts. 989, 990
Sect.158 (f.) Cr. C.]-Per Duff, Anglin,
Brodeur andMignault JJ. Where a contract sued upon has been held void illegality on a ground not pleaded and not referred to at the trial until after the close the evidence, and the circumstances relied upon to establish such illegality may be susceptible of explanation, a new trial should be directed to afford the plaintiff an opportunity to adduce evidence to meet the defence of illegality.
Connolly v. Consumers Cordage Co. (89 L.T.
followed.
2-Negligence-Action for damages- Inconsistent findings of jury ........
NUISANCE - Theatrical performance- Crowd on street-Obstruction of neighboring premises-Injunction.] A theatre may be restrained by injunction from arranging its performances that persons waiting for admission assemble in such numbers that they obstruct the access to neighbouring business premises and seriproprietors.
&
PARTNERSHIP-Sale of interest one partner to the other-Oral agreement- Evidence-Statute of Frauds-"The Partnership Ordinance," N.W.T. Ord. (1905) 94, s. 24.]-Held, Duff J. dissenting, that, though the assets of a partnership include an interest in land, an oral agreement by one partner to buy out the other partner's interest in the partnership enforceable and the Statute of Frauds inapplicable in such a case, unless it be shown that there appears a "contrary intention" to the rule enacted by 24 "The partnership Ordinance" that "land" which has "become partnership property treated the partners estate." - L.R. PATENT
OF INVENTION-Installation of invention-Foreign vessel-Infringement-"Patent Act,"
R.S.C. 69, ss. 30 and having a contract from the French Republic to construct twelve vessels at Fort William for use during the late war, agreed, by a supplementary contract, when the vessels were 95% completed, to install on each of the ships a wireless apparatus which the respondent claims to be an infringement of its patent. These apparatus were bought by the French Republic in New York and shipped to itself at Fort William. The respondent did nothing else than allow its men, under the direction of a naval officer of the French Republic, to install these apparatus on the vessels.-Held, Anglin J. dissenting, that the respondent did not "construct or put in practice" the invention of the appellant within the meaning of section 30 of the "Patent Act."-Per Mignault J. The terms section 53 of the "Patent Act," cover not only the case of a foreign ship visiting a Canadian port, but also the case of a foreign ship built in Canada.
contra.-Judgment
Exchequer Court Ex. C. R. affirmed, Anglin J. dissenting, and Duff J. taking no part in the judgment owing to absence. Criminal law-Trial-Plea of insanity- Charge to jury-Proof-Beyond a reasonable doubt.] On a criminal trial where the prisoner pleads insanity it is misdirection for the judge to charge the jury that insanity must be proved beyond a reasonable doubt.
Rex v. Anderson (7
Alta. L.R. approved.
The King v.
Kierstead (45 N.B. Rep. 553) overruled.
Idington J. dissents.
PRESCRIPTION-Municipal
Corporation-Public road-Bornage-Law of Quebec-Art. 2193 C.C................
PRINCIPAL AND AGENT-Commission-Sale of land-Statute of Frauds- R.S.O. 102, s. ..........
Registration
Sale
Arts.
2013 2013g, 2082, 2083, 2084, 2103
C.C.-(Que.)
Vict.,
46;
(1895) 59 Vict., 42; 4 Ed. VII,
43, Geo. V,
There was no provision in the Civil Code, as it stood before the 22nd December, allowing the architect to assert a privilege during the progress of the work unless his claim has been registered; and his privilege "takes effect" only from the date of registration.
The sale to a third party of an immovable upon which buildings have been erected is conclusive against any rights the architect employed their erection may have, if the latter has not registered his privilege before the registration of the deed of sale.-Judgment of the Court of King's Bench
(Q.R. 29 K.B. 364) affirmed.
RAILWAY-Master and servant-Railways-Injury to servant-Knowledge dangers-Volenti non fit injuria--Liability of master.] The respondent, employed by the appellant railway company as roadmaster, had been specially instructed to repair a certain section of the road-bed which was in a dangerous condition owing to bad rails. The respondent frequently applied for new rails which the appellant not supply.
While, in the course his employment, the respondent was travelling over that
RAILWAY-Concluded.
section in a hand-car, an accident occurred through the car leaving the tracks and he was injured.-Held, Sir Louis Davies J. dissenting, that the appellant liable, the defence of volenti non fit injuria not being applicable under the circumstances.-Judgment of the Appellate Division Alta. L.R. 464) affirmed, Sir Louis Davies C. J. dissenting ............ SALE OF GOODS-Bills and notes- Conditional sale agreement-Promissory notes-Notes on same sheet as agreement- Negotiability- Holder in due course- "The Sale of Goods Ordinance" (N.W.T.) The appellant bought a horse from one Dygert for $1,700, paid $300 cash and gave two notes of each.
Below each note was written an agreement providing that the property in the horse would not pass until the balance of the purchase price was paid; and stipulating that '"no holder of said shall the state accounts between the subscriber and the promisee or by any equities existing between the subscriber and the promisee, but shall be deemed to be a holder in due course and for value of the notes held Dygert indorsed the notes to bank for value. The horse died before the notes were paid and the sale was then avoided between the appellant and Dygert under "The Sale Goods Ordinance."-Held, that the respondent bank was entitled to recover notes the appellant.-Per Idington, Anglin, Brodeur and Mignault JJ. Under the agreement, the respondent bank was a holder in due course, though it had notice of the contract between and Dygert. Per Idington, Duff and Mignault JJ. These notes were severable from the agreement and constituted in law promissory notes.-Judgment of the Appellate Division 3 W.W.R. 542) affirmed. Trustee vendor-Rights of beneficiaries-Going concern-"Or thereabouts' SPECIFIC PERFORMANCE-Sale land-Memo.
in writing-Statute
Frauds-Additional terms ..........
2-Part performance-Vague terms- Construction....................... 482
STATUTE-Crown Lands Act-Payment for title-Receipt-R.S.Q.
Arts.
The appellant, by a petitory action, asked to be declared owner of certain land subject to the Crown's
Lands Act and invoked as his title the following receipt delivered to him
Crown's
Lands Agent:
Lands Agency.
$1.00.-Dec. 29th, 1910.
-Received from Adelard Diotte the sum of one dollar as fee for registration
(description land).
Win.
Clarke, agent."-Held, that the terms of such a receipt do not fall within the provisions articles 1559 and 1562 R.S.Q.
DioTrE
2-Municipal corporation-Contract- Gas company-Maximum rate-"Existing rate"-"Public Utility"-"Public Utilities Act," (Alta.), s. s.
(b) and s. 23
The maximum rate stipulated in a contract between a gas while the company has not yet by by-law or otherwise fixed any rates which proposes to charge, is not an "existing rate" as used in section 23 of the
"Public Utilities Act" of Alberta; and the Board of Public Utility Commissioners has no jurisdiction to modify it.-Per
Sir Louis Davies C. and Anglin J. A gas company, which has a number of wells drilled and ready for operation but has not yet constructed pipe lines to carry their output, nor begun to render service to the public, is a "public utility,"
within the purview of the "Public Utilities
Idington J. contra.-Judgment the Appellate Division Alta. L.R.
ALBERTA.............
STATUTE-Continued.
3-Assessment and taxes-Land-Actual value-Assessment on adjacent lands- Principle-Ontario Assessment Act, R.S. 0. 40 (1) and s. 69 By sec. 40 (1) of the Ontario Assessment Act "land shall be assessed at its actual value" and by sec. 69 "the court may, in determining the value at which any land shall be assessed, have reference to the value at which similar land in the vicinity is assessed."- Held, that assessing land under these provisions the governing principle is to ascertain its actual value.-Held, further, Brodeur J. dissenting, that in this case the assessment was made chiefly, if not entirely, on consideration of the value at which adjacent lands were assessed and the actual value was disregarded.
The case was, therefore, sent back to the tribunal appealed from to have the land assessed on the proper principle.
.......... vation of easement-Title to soil--Ontario Municipal Act, 433-3 Edw. VII, s. (Ont.).] Prior to the soil and freehold of roads and highways in Ontario were vested in the Crown and the roads and highways themselves the respective municipalities subject to any rights in the soil reserved by the person who laid out such road or highway."
Sec. 433 of the Municipal Act, repealed these provisions vested the soil and freehold of roads and highways in the municipalities without any reservation of right. Prior to land had been dedicated for a highway with the right reserved to maintain a raceway across it.-Held, Davies C.J. dissenting, that sec. 433 did not take away the right so reserved; to effect that purpose clear and unambiguous language is necessary and a mere inference from the repeal of the provisions protecting the rights reserved is not sufficient; and that the purpose of sec. 433 was to do away with the confusion arising from the joint proprietorship over roads and highways to which effect can be given without causing the injustice of taking private property without compensation.-Judgment of the Appellate Division (45 Ont. L.R. 79) reversed and that of the trial judge
(39 Ont.
L.R. 382)
restored. STATUTE-Concluded.
5 - Action - Commission - Statute
Frauds-Leave to amend-6 Geo. V, c. 24, s. 19 (Ont.); 8 Geo. V, c. 20, e. 58 (Ont.).]
By 6 Geo. V, ch. 24, sec. 19, amended by
8 Geo V ch. 20, see. 58, sec. 13 of the
Ontario Statute of Frauds, R.S.O. [1914]
Ch. 102 was enacted as follows:-"No action shall be brought to charge any person for the payment of commission or other remuneration for the sale of real property unless the agreement upon which such action shall be brought shall be in writing separate from the sale agreement and signed by the party to be charged therewith or some person thereunto by him lawfully authorized.-Held,
Idington J. (dissenting)
, that this enactment is not retrospective and does not bar an action to recover commission under a contract made before it came into force.
Opinion of the Appellate
Division (48 Ont. L.R. 120) and of the trial judge (47 Ont. L.R. 37) overruled on this point.-Judgment of the Appellate
Division (48 Ont. L.R. 120), allowing the pleadings to be amended and damages claimed for breach of contract, affirmed,
Idington J. (dissenting)
.-Per
The Appellate Division should have allowed the appeal and refused the motion for dismissal of the action. No amendment was necessary, the pleadings as they stood being sufficient.
STATUTE OF FRAUDS-Sale of land- Memo. in writing-Additional terms. 312
2- Partnership-Sale to co-partner- Oral agreement....................
3---Ontario-R.S.O. [19141 c. 1025, s.
13-Sale of land-Commission ......
See 5.
STATUTES-(D.) 55-56 V. c. 29, ss. 154,
157-(Criminal Code)..............
2-(D.) 55-56 V., c. 29, s. 212 (Criminal
Code).............................
3---(D.) 55-56 V., c. 29, e. 828 (Criminal
Code)........................
STATUTES-Concluded.
4-R.S.C. [1906], c. 69, ss. 30 and 33 (Patent Act)...................... 5-8-9 Edw. VII., c. 9, s. 2 (Criminal Code)............................. 6--R.S.O..[1914] c. 102, s. 13 (Statute of Frauds)........................... See 5.
7-R.S.O. [1914] c. 195 (Assessment See TAXES 3. 8- (0) 3 Edw. VII, c. 19, s. 601 (Municipal Act)........................ 9-(0)
11- (0) 8 Geo. V., c. 20, s. 58 (Statute of Frauds)........................... See 5.
12-R.S.Q. [19091 Arts. 1559 and 1562 (Public Lands)................. 13-R.S.Q.
[1909] Art. 7321 (Workmen's Compensation Act)........... 14- 2 Geo. V., c. 45 (Immovables 237 15--R.S.N.S. c. 141, s. 7 (Statute of Frauds)........................ 16- R.S.B.C. [1911] c. 217, s. 7 (Succession Duties)....................... See DUTIES. 17-(Alta.) s. 1915, c. 6, ss. 20 (b) and 23 (c) (Public Utilities)............ 18-(Alta.) s. 1919, c. 37, s. 62b (Land Titles)............................ 19- (Sask.) s. 1917, c. 23 (Temperance SUCCESSION DUTIES-Deceased domiciled without the province-Property within and without the province-Method of taxation on property within-"Succession
British Columbia dies leaving property both in and out of the province, the provincial authorities have the right, for the purpose of computing succession duty according to section 7 of the "Succession Duty Act," to take into account all the property.-Judgment of the Court of
Appeal 3 W.W.R. 76) reversed,
Anglin and Mignault JJ. (dissenting)
.
MINISTER BRITISH v. THE TRUST CO....
TEMPERANCE
ACT-Saskatchewan- Violation-Bribery-Cr. Code, ss. 154,
157..............................
TIMBER-Right to cut-Immovable property-Valuation roll................
See TAxEs
TITLE TO LAND-Municipal corporation-Public road-Sidewalk - Prescription-Dedication-Servitude-Art. 2193 C.
On an action en bornage instituted by the appellant, the respondent claimed the ownership of a strip of land, used as a sidewalk in front of the appellant's by virtue of documentary title by dedication and by prescription of tirty years. The appellant denied the existence of the documentary title and urged that the respondent's possession was not unequivocal, alleging that, during that possession, the steps leading into his house encroached on the sidewalk, the cornices projected over it and the drain crossed the strip of land.- Held, Duff J. dissenting, that the corporation respondent is the owner of the strip of land.-Per Anglin, Brodeur and
Mignault JJ. The encroachments alleged by the appellant did not have the effect of vitiating the respondent's title.- Per Duff and Brodeur JJ. A municipal corporation can acquire a public way by prescription.
J. dubitante.spondent became owner of the strip of land by way of dedication duly accepted- Per Duff and Brodeur JJ. The common law doctrine of dedication is not a part of the law of the province of Quebec.
A-JEAN.....
TRAMWAY-Workmen's
Compensation Act-Free transportation-In/ury to employee-"In course of work' -Art. R.S.Q. [1909]................... TRUSTEE-Sale-Vendor or trustee- Rights of beneficiaries-Representation- Term "or thereabouts".] The vendor may be a trustee for others of the money payable by the purchaser but his beneficiaries have no rights but those given by the contract and if, in carrying out the sale, the purchaser incurs a loss for which the vendor is liable it may be deducted from the purchase money.-In a contract for sale of a going concern the liabilities were stated to be $36,894, "or thereabouts."-Held, that an excess of $857 was too substantial to be covered by the qualifying expression.-Judgment of the Appellate Division (47 Ont. L.R. 265) BEST......... .576 VENDOR AND PURCHASER-Mortgage-Mortgagee holding first and third mortgages-Foreclosure of first mortgage and sale of land-Recovery under covenant on third mortgage-Collateral security not discharged.] The appellant, having purchased a property from the respondent, transferred to him, as security for the balance of the purchase price, a first and a third mortgage due by one Yandt upon another property; and, as collateral security, he also gave a mortgage on the property bought, payable at dates corresponding with the respective due dates of the above two mortgages. In course of time, the respondent obtained foreclosure under the first mortgage and sold the land. The appellant then claimed a discharge of the collateral mortgage.-Held that, notwithstanding the foreclosure of the first mortgage and the sale of the foreclosed property, the respondent could still recover under the appellant's covenant for payment contained in the third mortgage and the appellant was not entitled to the discharge of the collateral mortgage until the payment of the third mortgage.-Judgment of the Court of Appeal (12 Sask. L.R. 445; [1919] 3 W.W. R. 719) varied.
2-Mortgage-Order allowing purchase by mortgagee-Execution for balance of claim-Foreclosure-'fThe Land Titles Act," (Alta.) S. (1919) c. 37, e. 62b.] An order by which a mortgagee becomes the VENDOR AND PURCHASER-Cont'd.
owner of the mortgaged land as purchaser at a named price with leave to issue execution for the balance of his claim, is not an order for foreclosure operating as satisfaction of the debt under section
62 b. of "The Land Titles Act" as amended by chapter 37 of the Alberta Statutes,
1919.-Per Sir Louis Davies C.J. and
Idington and Brodeur JJ. (affirming the judgment of the Appellate Division).- Though the order should have been set aside and a proceeding de novo directed, the decision of the Appellate Division that, notwithstanding the terms of the order, the mortgagee may still pursue his remedy for the balance of his claim should not be disturbed, the question involved being one of practice and procedure.- Per Duff, Anglin and Mignault JJ.
(Reversing said judgment)-The order should be set aside as the doctrines of equity in regard to mortgages preclude the making of an order which purports uno flatu to vest the mortgaged property in the mortgagee as purchaser free from all equity of redemption and to enforce the personal liability of the mortgagor for some part of the mortgage debt. A mortgagee cannot have both the mortgaged property and the mortgage money- Per Duff and Anglin JJ. The sale sanctioned by the order was not a sale of the land within the meaning of s.s. 2 of s.
62 of "The Land Titles Act" and the mortgagee is therefore prohibited by that section from issuing execution under his judgment on the covenant.
The sale contemplated by the statute is a sale to a stranger, not to the mortgagee.-Judgment of the Appellate Division (15 Alta.
L.R. 17; (1919] 3 W.W. R. 634) affirmed on equal division of the court.
TRUST CO...............
3-Judicial Sale-Taxes due-Fraud- Nullity-Municipal law-Practice and procedure-Irregularities-Arts. 689 and sef., 1043, 1045, 1591, 1701, 1709, 1710,
1851, 1967, 1983, 2017, 2161 (i) C.C.- Art. 748 C.C.P.-Arts. 373, 718, 723,
734, 735, 946, 955, 962, 998 to 1015 M.C.]
In 1846, one 0. became owner of a certain lot of land comprising two cadastral lots.
In 1867, he bequeathed it to seven legatees who were thus joint undivided proprietors, one of whom was his daughter, D., owner of one-eighth of the property.
In 1879, being indebted to the respondent,
D. signed a deed of obligation in his
VENDOR AND PURCHASER-Cont'd. favour and, as collateral security, D. transferred to the respondent all her rights in the above property. In 1899, the respondent obtained judgment for the amount then due which was never registered nor executed.
The whole property was then assessed for taxing purposes under the name of "Estate 0." without any objection on the part of the respondent who never concerned himself about the property. In 1902, the appellants, two of the legatees, purchased about the two-thirds of the shares of their co-legatees, with the exception of those of D. and others which they tried but failed to acquire.
Up to two years previous to 1906, the municipal taxes had been paid, without the evidence showing positively by whom.
In 1907, the taxes not having been paid for more than two years, the property was sold by the municipality and adjudicated to the appellants who were the only bidders. Two years later, they became absolute owners by virtue of a deed of sale from the municipality.
In 1912, the respondent took an action to set aside the adjudication and the deed of sale, alleging fraud on the part of the appellants and also irregularities in the proceedings of the sale.-Held, Sir Louis Davies C. J. and Brodeur J. dissenting, that the appellants, as co-owners of the property, were not in law bound to pay the taxes or to give the respondent notice of the sale and that there was no fraud on their part in making use of the means of a sale for taxes in order to dissolve the undivided ownership.-Per
Duff, Anglin and Mignault JJ. The first offer, even if the only one, made in a sale for taxes, is an "enchbre" within the meaning of Art. 1001 M.C.-Per Idington, Duff, Anglin and Mignault JJ. The party owing municipal taxes is not deprived of the right to bid and be declared purchaser of the property sold by the municipality for the payment of those taxes.-Per Idington, Duff, Anglin and Mignault JJ. The property having been entered on the valuation roll under the name of "Estate 0." without any objection by the respondent the sale ought to be considered as made super domino.-Per Idington, Duff, Anglin and Mignault JJ. The seizure and the sale of the goods and chattels of the party owing municipal taxes is not a preliminary condition to the sale of the immovable VENDOR AND PURCHASER-Cont'd. I VENDOR AND PURCHASER-Cont'd. property, the provision of Art. 962 M.C.
eing permissive and not imperative.-Per
Anglin and Mignault JJ. The respondent was not the "owner"
of the eighth undivided part transferred to him by
D.-Per Brodeur J. (dissenting). The evidence is sufficient to create the presumption that the appellants were in possession, if not of the whole property, at least of the seven-eighths part of it, and they were bound in the circumstances of this case to pay all the taxes due on it or to give notice to the respondent of the sale of the property for taxes due.-Judgment of the Court of King's Bench
(Q.R. 30 K.B. 252) reversed.
LEFEVRE.......................
4-Sale of land-Memo. in writing- Statute of Frauds-Additional terms.] Pursuant to an agreement to purchase her property the vendor signed the following document: "Received from A.
Garden Road. Purchase price ten thousand five hundred dollars.
Balance on delivery of deed."
In an action by the for specific performance.- Held, that this document contained all the essential terms of a contract for the sale of land and complied with the conditions of sec. 7 of the Statute of
Frauds. R.S.N.S.
ch. 141.-It was contended that the time for completion of the purchase was a term of the contract and should have appeared in the written memorandum.- Held, that the finding of the trial judge that the time for completion was agreed on after the document was signed should be accepted and it was, therefore, not a term of the original contract but an arrangement for carrying it out.-Per Duff J. This defence was not pleaded nor submitted to the jury and, as a question of fact, could not be raised after verdict since it was not disclosed so as to challenge the attention of the plaintiff.-It was also alleged that the property sold was mortgaged and the purchase was only of the equity of redemption which the memorandum did not disclose.-Held, that the purchase was of the whole property and not of the equity of redemption only and that the contract contained in the memorandum could be worked out as if it provided for the mortgage.
WALs..............
5-Partnership-Sale of interest by one partner to the other-Oral agreement- Evidence-Statute of Frauds-"The Partnership Ordinance," N.W.T. Ord. (1905), c. 94, s. 24.-Held, Duff J. dissenting, that, though the assets of a partnership include an interest in land, an oral agreement by one partner to buy out the other partner's interest in the partnership is enforceable and the Statute of Frauds is inapplicable ip such a case, unless it be shown that there appears a "contrary intention" to the rule enacted by s. 24 of "The Partnership Ordinance" that "land" which has "become partnership treated as between the partners * * * as personal or "movable and not real estate."-Judgment
Division (15 Alta. L.R. 556) affirmed, Duff J. dissenting.
6- Sale of land-Agreement-Reservation of mines and minerals to Crown- Implied powers-Whether greater than those expressly reserved in Crown grant.] The reservation, in a Crown grant, of the mines and minerals "with full power to work the same and for this purpose to enter upon and use or occupy the * * * lands or so much thereof and to such an extent as may be necessary for the effectual working of the said minerals *
*
*
" confers greater powers than those implied in a bare reservation in an agreement for the sale of the land so granted of "all mines and minerals." Sir Louis Davies C.J. and Idington J. dissenting.-Per Duff, Anglin and Mignault JJ. The terms of both reservations imply the right to win, get at and take away the minerals; but the terms of the reservation in the Crown grant may imply furthermore the right to cause subsidence or destruction of the surface.- (15 Alta. L.R. 194) reversed, Sir Louis Davies C.J. and Idington J. dissenting. v. GARNEAU............... 7- Action-Sale land-Building restrictions-Conveyance by vendee-Breach by purchaser-Action by original vendor- Interest-Laches.] A syndicate owning land conveyed it to P., one of their number in trust to subdivide and sell. P. made several subdivisions and sold lots in one with a covenant by his grantees to erect only residential buildings. grantees conveyed the lots to a church S.C.R. VOL. LXI.] VENDOR AND PURCHASER-Condd.
corporation who proceeded to build a church thereon. In an action by P., in his personal capacity, for an injunction and demolition of the church building.- Held, Brodeur J. dissenting, that P. had no interest to maintain the action having before the trial sold all his holdings in the subdivision containing the church.
Brodeur J. held that he owned and continued to own one lot in the area affected by the covenant of P.'s grantees.-Held, also, per Idington and Anglin JJ., that as the injunction was not applied for until the church was practically completed P. was probably estopped by laches from bringing an action.
.....
8-Sale of land-Option under seal- Condition precedent-Specific performance
............
... .................
See 6.
WAIVER-Insurance-Accident guarantee-Breach of contract-Insurer's knowledge-Continuation of defence in action against insured-Waiver of condition-Estopped.] The respondent held a policy of insurance in the appellant indemnify against accidents to his employees.
An employee was injured and brought action against
The appellant, in pursuance of a condition of the policy, assumed the defence. During the trial, the appellant learned, by the respondent's own admission, that the machine which caused the accident had been unguarded in breach of a condition of the application and of the policy. But the appellant continued the defence down to judgment awarding damages to the employee. The respondent brought this action to recover the amount paid by him. The appellant pleaded that owing to the respondent's breach of the condition of the policy, it was relieved from liability.-Held, that the appellant company, having assumed
WAIVER-Concluded.
and continued the defence with knowledge of the fact that the machine was unguarded, waived any right to dispute liability under the policy for such breach of condition.-Judgment of the Court of Appeal (13 Sask. L.R. 405) affirmed. WORDS AND PHRASES-"Administration of justice"............... "Construct or put in practice" ....... "Of previously chaste character" ..... "Or thereabouts".................... "Owner".... ...................... "Public utility".
............... WORKMEN'S COMPENSATION ACT -Tramways. Company-Free transportation-Injury to employee-Liability-R. S.Q. [1909] arts. 7321 & seq.] The respondent, an employee the company appellant, when injured, was returning from his work to his home in a tramear on which he was entitled to be carried free under certain provisions in the company's regulations.-Held, that the respondent had a right to compensation under the Quebec Workmen's Compensation Act, as the injury was occasioned "by reason of or in the course of his work" within the meaning of article 7321 R.S.Q. (1909).- Judgment of the Court of Review (Q.R. 57 S.C. 394) affirmed.
MONTREAL Co. GIRARD...............
Cases cited
- 3 W.W.R. 909 3 W.W.R. 909
- 3 W.W.R. 365 3 W.W.R. 365
- 3 W.W.R. 719 3 W.W.R. 719