«v^ W6 A TREATISE ON THE Investigation of Titles TO REAL ESTATE IN ONTARIO; WITH A PRECEDENT FOR AN ABSTRACT. BT EDWARD DOUGLAS ARMOUR, OF OSGOODE HALL, BARRISTER-AT-LAW. « TORONTO: CARSWELL & CO., LAW PUBLISHERS, 1887. Entered according to Act of the Parliament of Canada, in the year one thousand eight hundred and eighty-soven, by Edward Douglas Armoub, in the oflBce of the Minister of Agriculture. PBIMT&D BY MoouE A Co., Law Printers, 20 Adelaiss St. East, TOBONTO. PREFACE. rpHE author's first intention was to publish a new edition of Mr. Justice Taylor's book on the Investigation of Titles which proved so useful to the profession, and arrangements were made for that purpose. But after a great deal of labour had been expended, it was found that since the last edition was published the legislative changes were so numerous and radical, and the number of cases so great, that it was impossible to retain the scheme of that work. The attempt to bring that valuable work down to date was abandoned with much reluctance, as Mr. Taylor's great experience and well deserved reputa- tion had contributed to making his work authoritative. The scope of the present work is somewhat larger than that of Mr. Taylor's, but the author has endeavoured to confine himself logically to the treatment of the subject from the purchaser's point of view. The incessant and irritating amendments and alterations of the law by the Legislature necessitated the recasting of several chapters after they were ready for the press, and the re-writing of nearly a whole chapter after it was in type ; and this and other causes combined to produce some delay in publication. IV PREFACE. Tax titles and the law and practice under the Quieting Titles Act wliich were treated of by Mr. Justice Taylor have been omitted from this work. The former subject cannot be dealt with comprehensively ; and to have gone into details would have iuordinatelv increased the size of the work. Excellent American treatises on the subject are easily accessible. The opinion that the Quieting Titles Act is destined to be superseded by the Land Titles Act, and the fact that excellent and recent notes on the Act and rules have been published, seemed to the author a good reason for omitting the subject from this work. Since chapter V. v;ent through the press the case of Mcintosh V. lioijers, 14 Ont. R. 97, has been decided. As it varies to some extent the text respecting Production of deeds it has been deemed advisable to print it in the appendix as tne best commentary on the subject at present attainable. The thanks of the author are due to W. D. Gwynne, Esq., who rendered valuable assistance wLile the work was going through the press, and compiled the index. Table of Contents. prefacp: PAGE , . iii PART I. INVESTIGATION AND PROOF OF TITLE, CHAPTER T. Ok The Different KiifT)8 of Title. Title detined . . Marketable title . Safe-holding title. Donbtf ul title 1 2 2 S CHAPTER II. Of the Puuchaseus Riuht to .k Got)D Title and how it may he Waived Open contract ; absolute right to good title Waiver By matter before or contemporaneouB with the contract. By the contract itself 4 6 6 Tl TABLE OF CONTENTH yf&iver ^Cnntiutied Limited enquiry 7 No enquiry H Rescission by vendor on objections by purchaser 9 By matter subsequent to the contract 15 Taking possession ; securing purchase money, etc 10 Re-sale Itl Favourable opinion of counsel 20 Preparation of conveyance 20 Particular objection 21 CHAPTKH III. Thk Ahsthact ov Titlk. Right to abstract 2.'J Delivery of abstract— serving objections 24 Practice between partie:^ 24 " in Master's office 2<> Length of title abstracted 27 60 years ; good root 27 Moro than 60 years 30 Less than 60 years ; Bolton v. London School Hoard 8H Contents of abstract 85 Equitable interests 36 Concealment of documents 37 Perfect abstract 30 CHAPTER IV. Rk2 Registrar's abstract 63 Right to inspect books ()5 The search 60 Notice ; priorities 71 TABLE OF CONTENTS. VU CHAPTER V. Vehificatiox ok thk Abstkact ; Pkimauy Eviukxck. PAUB Production of deeds HO Mortgaged landFi HI Uecords 82 Memorials 83 Deeds registered at full length 85 Certified copies 8fi Execution of deeds 88 By attorney 8U Recitals, etc.. 20 years old 90 Miscellaneous 92 CHAl^TER VI Vfrikication of thk AnsTKArr ; Skcoxdary Evii)Knce am> PitKsrjirrioNs. Secondary evidence 9JJ Loss or destruction of deeds. 97 Search 97 Memorials 100 Certified copies 101 Recitals 102 Presumptions 103 Things rightly done — deeds 104 Identity of persons. 105 Officials and official acts 106 Life, death and survivorship 107 Women past child-bearing 109 Legitimacy and marriage 109 Satisfaction of mortgages 110 Miscellaneous Ill CHAPTER VII. Inccmbraxces. Mortgages and incumbrances generally 11-4 Taxes 121 Local improvements — drainage — sewers 123 Executions 125 Vm TABLE OF CONTENTS. PAOR Registered clouds 1H2 Vendor's lien 187 Crown bonds 137 Lis pendens 13t> Dower 141 Tenancy by the cnrtesy 147 Easements 157 Mechanics' liens 104 Discharges of mortj^ages lOK CHAPTER VIII. Furchassr's Right to Dkkds. * Production 170 Recovery after contract 172 Custody, and covenant for production 172 CHAPTER IX. Doubtful Titles. Origin of the doctrine 170 Amount of doubt necessary 180 Classification of doubtful titles 181 TABLE OF CONTENTS. IX PART II. PARTICULAR TITLES. ' CHAPTER X. TiTLK BT Possession. PAOB Nature of evidence 194 Operation of statute — extinguishment of title 196 Commencement of running of statute 198 Successive trespassers 199 Area affected by possession 204 Mere trespasser 204 Entry under defective title 207 Acknowledgments 207 CHAPTER XI. Title by Inheritance, Succession and Devise. Inheritance 212 Evidence generally 213 Descent before 1852 216 Descent after Ist January, 1852 217 Statutory evidence 217 Succession by personal representatives 220 Bare trustee 220 Personal representative of vendor 220 Married women's Act, 1884 221 Devolution of Estates Act 222 Wills 224 Before 1874 224 After Ist January, 1874 225 Attestation 226 Execution 229 Miscellaneous 231 Married women 232 Registration 233 X TABLE OF CONTENTS. ' . -. ' If- CHAPTER XII. CONVKYANCES BY MaRRIED WoMEN. PAOR Defective certificates 235 Joinder of the husband 242 Statutory separate estate 24«i Summary 2 "»2 . CHAPTER XIII. Judicial Titles. Judicial sales 2.53 Vesting orders 256 Sales unde. execution 258 CHAPTER XIV. / Sales under Powers in Mortuaoes. Form and effect of the power 2<)4 Notice of sale 2GW Sale and conveyance 278 ■~ '-•- "" "• '-'.■■", APPENDIX. Mcintosh V. Rogers 287 Precedent for an abstract of title 291 Index 303 Table of Cases. Adams v. Loughman, 160 Addison v. Walker, 81 Agra Bank v. Bany. 37, 98, 113, 170 Ainsworth, In bonis, 230 Aid well V. Aid well, 19, '20, 21 Alexander v. Crosby, 20, 102, 279 Milla,178, 187, 188 Alison, Re, 195, 196, 268 Allan V. Levesconte. 242 Allen V. Taylor, 159 " Edinburgh Life Ass. Co., 258 Allison V. Rednor, 105, 106, 200 Annandale v. Harris, 102 Anonymous, 270 Ansley v. Breo, 97 Appleton V. Braybrook, 83, 88 Archer, In bonis, 227 Arner v. McKenna, 198 Arnoldi v. Gouin, 164 Arthur, In bonis, 230 Asher v. Whitlock, 199, 203 Baker v. Wilson, 110 Baldwin v. Duiguan, 72 Bank of Montreal v. Baker, 61, 128 Fox, 26, 122, 124 Barclay v. Raine, 173 Barlow v. Rhodes, 162 Barrv. Doan, 86. 114 Bartlett v. Jull, 272, 274 Battersbee v. Farrington, 102 Bayman v. Gutch, 179 Baynton v. Collins, 251 Beatty v. Beatty, 142 Beck V. Moffat, 74 ^ Beioley v. Carter, 187 ' • Bell, i?e, 97 Chamberlen, 81 ' Holtby, 187 Walker, 60.73 . . Bennett v. Hamill, 253 - •'- Berry v. Young, 80 Bethune v. Calcutt, 59 Biscoe V. Perkins, 177, 186 Wilks, 186 Bishop of Winchester, v. Payne. 140 Blackburn v. Smith, 39 Blackford v. Kirkpatrick, 18 Blacklow V. Laws, 15, 24 Blosse V. Clanmorris, 177 Boehm v. Wood, 24 Bolton V. Bolton, 162 " London School Board, 30, 33, 90 Bondy v. Fox, 45, 234 Bonter v. Northcote, 146 Boucher v. Smith, 42. 43, 46 Bough ton V. Jewell, 171, 173 Bousfield V. Hodges, 15, 279 Boustead & Warwick, Re, 23, 95, 194 " V. Whitmore, 152 Bowen v. Evans, 254 Bowman v. Hyland, 11, 14 Bown V. Stinson, 16, 18 Boyd V. Petrie, 268 Boys V. Wood, 208 Bradbarn v. Hall, 262 Braddock, In bonis, 227 Xll TABLE OF CASES. Bradford v. Belfield. 266 Brady v. Walls, 41, 88, 135 iiramwell v. Harris, 191 Bratt V. Lee. 98, 99 Braybrook v. Inskip. H9 Brega v. Dickey, 56, 64 Bright V. McMurray, 283 Bristow V. Wood, 188 Brouard v. Dumaresque, 279 Brower v Can. Perm. L. & 8. Co., 63 Brown v. Livingstone, 106 Pringle, 109 Robins, 159 Woodhouse, 282 Browne v. Lockhart, 81 Bruyere v. Knox, 76, 127 Brvant v. Busk, 35, 80, 102 Bryson v. O. &. Q. R. W. Co., 146. 248 Buchanan v. Campbell, 74, 134 Buck. lie, Peck v. Buck, 116, 117 Bull V. Hutchens, 141, 178. 185, 187, 189 Burdon v. Kennedy, 131 Burnell v. Brown, 21. 22 Burnett v. Lynch, 102. 103 Burnham v. Daly, 167, 263 Burns V. Canada Co., 108 Burroughs v. Oakley, 15, 16, 18, 21 Butterfield v. Heath, 188 G Cahuac v. Cochrane, 211 Calcraft v. Roebuck, 22 Calvert v. Black, 145 Cameron v. Carter, 114, 115 Campbell v. Campbell, 82 R. C. Bank, 253 Canada Co. v. Douglas, 201, 211 Can. Perm. L. & S. Co. v. McKay, 59 Page, 88 Canavan v. Meek, 119 Cannock v. -launcey. 81 Carey v Toronto, 161 Carroll v. Robertson, 283 Carter v. Grasett, 159 Casmore, In bonis, 230 Cattell V. Corrall, 182, 190 Causton v. Macklew, 191, 126 Chamberlam, lie, 99 Chamberlain v. McDonald, 148 Chambers v. Waters, 282 Chantler v. Ince, 115 Charles, lie, 83, 171 Charlton v. Craven, 179 Chichester \ . Donegall, HI Lethbridge, 162 rhisholm & Oakville, lie, 161 Christie v. Ovington, 220 Church Societv v. McQueen, 115, 117 Clark V. Boga'rt. 73. lH. Langley, 26 Clarke v. ('ogge, 162 Willott, 191 Clements v. Martin, 201 Clemow V. Booth, 120 Clonmert v. W' hitaker, 179 ' - Coaks V. Boswell, 255 Cochrane v. Johnson, 72 Cockenour v. Bullock, 27. Colclough V. Sterum. 253, 25o CoUard v. Sampson. 1S5. Collier v. McBean, 1H5. 186 Collins V. Dempsey, 111 Commercial Bank v. McConnell, 15. 16 Converse v. Michie, 127 Cook V. Dawson, Ibi'y Cooke V. Soltau, 104 Crawford, 266 Cooiey v. Smith, 59, 62, 73 Coombs, In bonis 229 Cooper V. Denne, 177. 178 Emery, 29, 82, 83, 171. Macdonald, 153, 157, 232, 251 Corbett V. Taylor, 123 Corder v. Morgan, 283 Core V. Ont. L. it J . Co., 60. Corrall v. Cattell. 7 Coulter & Smith, Re, 146, 155, 219. 251. Court v. Walsh, 196, 197 Cozier, Re, Parker v. Glover, 119 Craig, Re, 167, 194 Craig v. Templeton, 144 ' .? Crawford v. Curragh. 225 • Crocker v. Sowden, 242 Cronn v. Chamberlin, 129 .• Crooks v. Glenn, 18 Culpepper v. Astor, 140 Cummings v. Alguire, 143 Curling v Shuttleworth, 179, 268 Currier v. Friedrick, 168 Cutter v. Simons, 17 Cutts v. Thodey, 25 D Dalton V. Angus, 159 Damer v. Portarlington, 81 Dames & Wood, Re, 10, 13, 14 TABLE OF CASES. XIU Dance v. Goldingham, 2H1 Darby v. Greenlees, 17, IH, 19 Dare v. Tucker, 171, 175i Darlington v. Hamilton, 8 Davey v. Durrant. 278, 27U, 280, 281 Davidson v, McKay, 57. 58 DaviH, lie, 234 Henderson. 200, 201 *• Sear, 1H2 " Strath more. 125 Defoe, lie. 111. 211 Denison v. Fuller, 1<». 17 Deverell v. Lord Bolton, 20 Dicker v. Angerstein, 2<>M Dickey v. Heron. 253 Dilkes, In honix, 227 ^ Dixon V. Astlev, 18 Gayfere, lim. 200, 202, 203 Docwra. He. 220 Dodd V. Burchell, 101 Dodsley v. Kinnersley. 177 Doe ilein. Aikins v. Atkinson, 42 Anderson v. Todd, 28 '* Armour v. McEwen, 2(>3 Auldjov. Hollister. 12(5, 127 " Ausman v. Miiithonie, 11>5. 208, 211 Baldwin v. Stone. 200 Beckett v. Nightingale, 204. " Boulton V. Ferguson, 261 *' Breakey v. Breakey, 110 Brennan v. O'Neil, 127 •' Burnham v. Simmons, 127 Cameron v. Robinson, 258 Carter v. Barnard. 199 Cronk v. Smith. 75 " Crookshank v. Humber- stone, 94 '* Cuthbertson v. McGillis, 198, 201. Dissett V. McLeod, 263 Dunlop V. McNab, 111 Ellis V. McGill, 42. 234, (iardiner v. Juson. 262 Goody V. Carter, 200 '• (ireenshields v. Garrow, 262 Hagerman v. Strong, 127, 261 " Ilennessy v. IvTvers, 42 Hull V. Greenhill, 132 " Jukes V. Sumner, 197 Kingston Building Society V. Kainsford, 57, 58 " Maclem v. Turnbull, 105 Major V. Reynolds, 43, 75, 76, 78 '• iSIatlock V. Disher, 74 Whitesideij, 111 Whitcomb, 97 Henderson. 195, IhM' dem. McDonald v. Twigg. 242 McDonnell v. Rattrav. 198. 204 " McGregor v. Hawke 111 Mcintosh V. McDonell. 125, 126, 127 •' McLean v. Manahan. 58, 54, 68, 88 " McLean v. " Padwick v •* Perrv v. 196, 208 " Russell V. Hodgkiss, 75 Shibley v. Waldron. 42 Spafford v. Brown, 261, 263 Tiffany v. Miller, 261, 262, 263 Wheoler v. Ma^cwilliams, 83, 110 l)ominit)n L iV: S. Society v. Kit- tridge, 33,45, 62,63. 112 Donovan v. Bacon, 130 Doran v. Reid, 105, 242 ^ - Douglas y. Bradford, 261 ^ - Downes v. Grazebrook, 282 l>rewe v. Hanson, 22 Driver v. Thompson, 232 Drummond v. Tracey, 36 Dryadale y. Mace, 15 Duddell v. Simpson 12, 13 Duke v. Barnett, 8, 9 Dunham, Re, 111. 210, 211 Dynes v. Bales, 1.33 » Ends v. Williams, 25 Eastern Counties R. W. Co. y. Mar- riage, 66 Edwards v. McLeay, 117 Egleson v. Howe, 116, 117 Elliot v. Brown, 7U, 235, 237, 239, 24(; Edwa ds, 179 Ellis y. Dellabojgh, 282 Emery \ Grocoek, 91, 1' 4, 19o, 191 Emrick v. Sullivan, 148, 243 Englev. Fitch. 10, 12 English v. Murray, 6 Eno V. Eno, 189 Espley y. Wilkes, 160 Evans v Watt, 110 Eynon, lu lnmix, 228 Eyton V. Dicken, 191 I XIV TABLE OF CA8E3. t*. Fain v. Ayers, 172 Falkiner v. Equitable Rev Socy, 10, 271), 280 Farrell v. Cameron. 109 Faulds V. Harper. 129 Fawcett v. Burwell, 283 Ferguson v. Freeman, 98 Ferguson v Whelan, 209 Ferraps v. McDonald, 72 Fielder v. Bannister, 162 Finnegaii v, Keenan, HO Fischer v. Popham, 228 Fisher v. Spohn, 128 Fitzgibbon v. Duggan, 129 Fleetwood v. Green, 10 FJudyer v. Cocker, 10 Forbes v. Adamson, 119 Ford V. Grey, 1('2 Heelv, 207 ..',.,. Ford & Hill, Re, 28, 30 . Fordyce v. Ford, 22 lorrester v. Campbell, 00, 01 Forster v. Abraham, 178. 189 Hoggart, 207, 270 Forth V. Norfolk, 120, 131 Foster v. Beall, 72, 242 Crabb, 173 Lister, Re, 188 Moore, 140 Francis v. St. Germain, 2 Franklin v. Brownlow, 190 Freer v. Hesse, 190, 192 Freme v. Wright, 4, 7 Furness v. Mitchell, 149, 150, 151, 152, 153, 155, 245, 247, 248 Fursdon v. Clegg, 209 G Gale V. Gale, 175, 177 Gamble v. Gummerson, 114, 115 (;amble v. McKay. 64, 93 Games v. Bonner, 194 Gardiner v. Juson, 120, 127 Garner v. Hannyngton, 98 Gaviller v. Beaton, 2t3 Gayford v. Moffat, 102 George v. Thomas, 110 Gibbons v. McDougall, 271 Gififard v. Hort, 253 Gilchrist & Island, Re, 205, 207 Giles V. Morrow, 108 Gillett V. Abbott, 102 Glass V. Richardson, 180, 183 Gloag & Miller's Contract, Re. (> Godfrey v, Harrison, 151. 249 Gordon v. Gordon, 143, 220 Harnden, 20, 21 McPhail, 97 Graham v, Chalmers, 72 Law, 142 Williams. 108 Grant v. Can. Life, 271 Gray V. Ricbford, HI, 197. 211 i Great N. W. R. Co. & Sanderson, Re, 10, 12, 192, 257 Greaves v. Wilpon, 10, 11, 12, 13 ; Greenshields v. Bradford, 210 Grey V Be.ll, 00, 72 I " Coucher, 73 '■ Griffin v. I'atterson, 259 ■ . > i Griffith V. Hatchard, 173 Griffiths V. Griffiths, 228 . .\. : I Grove v. Bastard, 183 I Gunn V. Doble, 253 Gunstan, In boni>i, 228 H Hadley v. London Bank of Scotland, 140 Fall V. Betty, 5 Jarvis, 100 Hall Dare's Contract, Re, 254 Hallett V. Middleton, 172 Halsey v. Grant, 170 Ham V. Ham, 143 Hamber v. Roberts, 100 Hamilton v. Banting, 118 Buckmaster, 186, 187 " Morrison, 101 Ham.pshire v. Bradley, 278, 283 Harding, Re, 95, 216 Harding v. Wilson, 161 Hardman v. Child, 10, 14 Harkin v. Rabidon, 133 Harman tfe Uxbridge, Re 30, 30 Harris./?^, H)7, 217 Harris v. Mudie. 200, 201, 204, 205, 207 Harrison v. Armour, 59 Brega, 56, 64. 69 " Coppard, 172 Joseph, 122, 171 Harrv v. Anderson, 123 Hartley v. Pehall, 179 Harty v. Appleby, 72 TABLE OF CASES. XV Uaskin v. Eraser, 143 Hfttton, In bonis, 227 Hawkins v. Hamsbottom, 283 Hay, Re, 106 Haydon v. Boll, 17 , ^ Wrlliams, 208 Hayues v. Smith, 121 Hayward v. Thacker, 105 Heath v. Pugh, 107 Henderson v. Brown, 115, 116, 117 Harris, 201 Spencer, 105, 107 ,267 Henrihan v. Gallagher, 259 Heppenstall v. Hose, 10. 11 Heward v. Wolfenden, 129, 130 Heyland v. Scott, 204. 207 Hiern v. Mill. 5 Higgins, /?«;, 79, 105 Higliam v. Ridgway, 219 Hill V. Greenwood, 146 Hillary v. Waller, 103, 104, 191 Hilliker, Be. 233 Hillock V. Sutton. 209 Hobson V. Bell, 10, 24, 95, 281, 283 Hollywood V. Waters, 73 Holmes v. Goring, 161. 162 " Newlands, 196 Hooker v. Morrison, 210 Hoole V. Smith, 272 Hope V. Ferguson, 64 . Hopkins v. Hopkins, 228 ' ,^ Home V. Wingfield, 34 Horsford, In 6ow?«, 227 Horton & Hallett, Ke, 266 Howard v. Harding, 282 Robinson, 81 Howarth v. Smith, 182 Huckvale, In hoiiis. 228 Hudson & Simpson, Re, 95 Hudson V. Temple. 10. 14 Hughes, In bonis. 229. 231 Hughes V. C. & H. R. Co., 179 Hume V. Eentley, 8 Pocock, 5, 7 Hunt V. Hunt, 229 Hunter v Farr, 204 Hurd V. Billinton, 134, 136 Hyde v. Dallaway, 6 Warden, 16 Hynes v. Smith, 165, 167 Ibbotson V. Rhodes, 120 Imperial L. & S. Co. v. O'Sullivan, 137 Incorporated Society v. Riduurds, 196, 197 Inglesant v. Inglesant, 228 Irish Civ. Serv. Roc'y & O'Keefe, Re, 283 Jackson v. Jessup, 19 Jackson & Oakshott, Re, 12 Jenkins v. Hiles, 15 Jenner v. Finch, 226 Jervoise v. Northumberland, 2, 177, 180 Joice V. Duffy, 119 Jones V. Clifford, 7 Cowden. 42,43 McMullen, 89 ^ " Montgomery, 178 Johnson V. Bennett, 131 Legard, 191 " Reid. 63, 114 Keenan, Re, 130 Kelly V. Imp. L. & I. Co., 269, 283 Kennedy, Re, 116, 123 Kerr V. Styles, 130 ''--'';'' Kershaw v. Kalow, 281 Ketchum v. Mighton. 198 Keyse v. Powell, 198 Kipp V. Synod, 199 Kirkwood v. Thompson, 282 Kitchen v. Murray, 41, 135 Knatchbull v. Grueber. 5, 20, 22 Kroemer v. Glese, 1 48 Lane v. Debenham, 266 Lang V. Kerr, 66 Lansdowne v. Lansdowne. 17H Latch V. Bright, 57, 58 " Furlong, 279, 280 Latouche v. Dunsany. 61 Lawlor v. Lawlor, 169 Lawrie v. Rathbnn. 46 Lee V. Howes, 261 Leech v. Leech, 76 I \Vi TAHLE OF CASES. Lei^htua v. Leightou, S'.i. H'> Leitch V. McLellan, 14H Leeininj^ v. Smith, IIH Leiij5 V. Hodges. 1(M) Lesturgeon v. Martin. 20 Lessee of Dublin v. Judge. 20H Lewin v. (xuest, 3U fjewia V. Kelly, 201 Ley V. Peter, 20.S Lincoln v, Arcedeckne, 188 Lindsey v. Toronto, 44 Little V Aikman. 225. 221> Ll«)yd V. C'oUett, 24 Henderson, 198 " .Tones, 253 London v. Riggs. ir)2, 103, 164 Lord V. Stephens, 14 Losee v. Murray. 142 Lougliead v. Stubbs, 141 liovolace v. Harrington, 117 Low V. Morrison, 196 Lowes V. Lush, 190 Lundy v. Malonev, 258 Lvnch V. O'Hara^ 84. 101 M Miicdotiald v. Walker, 266 Macnabb, lie, 187 Macnainara v. McLay, 44 Maddock, In bonia, 228 Magrath v. Todd, 46 Major V. Ward, 107, 271, 274, 275 Makina v. Robinson, 165, 167 Mandeville v. Nicholl, 234 Mann v. Ricketts, 224 March. /^', 2";9 Margary v. Robinson, 230 Margravine of Anspach v. Noel. 17 Marlow V. Smith, 177, 187 Marsh ,,- Mitchell V. Mitchell, 255 " Weir 233 Moffatt V Bank U. C, 120 MoncktoR & Gilzean, Re, 13 Monk V. Farlinger, 105, 106 Monro v. Taylor, 7 Moore v. Bank B. N. A., 73 Moore v. Hynes, 124 ] Morgan v. Swansea, 220 Morley v. Cook, 10, 14 Morris v. Kearsley, 34 Morritt v. Douglas, 228 Mortlock V, BuUer, 11 Morton & St. Thomas, Re, 160, 161 Moulton V. Edmonds, 29, 32, 82, 102 MulhoUand v. Conklin, 204 Mullings V. Trinder. 181. 184, 185, 186 Munro v. Smart. 233 Munsie v. Lindsay, 228 Murray Canal, Re, 142, 147 Music Hall Bl ck. Re, 144, 168 Myles V. Noble, 135 Mc Mc Arthur v. Eagleson, 104 McCabe v. Thompson, 129 McConaghy v. Denmark, 199. 200, 204 McCrumm v. Crawford, 71, 73 McCutcheon & Toronto, Re, 124 McDermott v. Workman, 115 McDonald v. McDonald, 60 McDonnell, 129 Forbes, 108 Garrett, 17. 21 " Mcintosh. 19(i •♦ McKinty, 198 McMillan, 142 McDouell V. McDonell, 261, 2t;2 McGregor v. Robertson, 133 Mcintosh V. Rogers, 285 Mclntyre v. Canada Co., 209 McKiliigan v. Machar, 106 McKinnon v. McDonald, 207 TABLE OF CASES. XVI I McLean v. Ficher, 132 McLellan v. McDonald, 73 McLennan v. McLean, 169 McLeod V. Truax. 234 McManus v. Little, 21), 39 McMaster v. Anderson, 120 Phipps, 59, 60 McNamara v. McLay, 66 MoVean v. Tiffin, 165 N Nash V. Eadf, 282 Nash V. WoTiderhoupe, 9 Neeson v. Eastwood, 42 Neill V. Carroll, 165 Nelthorpe v. Holgate, 11 Penny man, 282 Nicholson v. Burkholder, 105 Page. 93, 106 Nolan, Re, 244 Norfolk's Case, Duke of, 178 Norria v. Meadows, 120 Norton v. Smith, 142. O Oakden v. Pike, 24 O'Connor v. Beatty, 16, 22 O'Donohoe v. Whitty, 274, 275 Ogden V. Mc Arthur, 148. 242 Ogilvie V. Foljambe, 5, 22 O Eeefe v. Taylor. 15, 16, 18 Ontario Indus. L. & S. Co. v. Lind- say, 56, 134 Ontario L. & S. Co. & TowerB,Re, 233 Ord V. Noel, 279. Orser v. Vernon, 105 Osborne v. Harvey, 17 Rowlett, 78, 187, 188, 189, 266 Packer v. Walsted, 162 Page V. Adam, 12, 14 Palmer v. Locke, 187 Park V. Riley. 259 Parker v. Tootal, 177 Parkinson v. Hanburv, 265, 267, 273, 276, 282, 283 Parr v. Lovegrove, 31, \Q Patch V. Ward, 81 Patterson v. Robb, 19 Todd, 261 Pearn, In bonin, 280 Pegg V. Wisden, 17 » IrelUam v. Gregory, 178 Peoples' L & D. Co. V. Bacon, 19, 122 Perry v. Perry, 277 Pheysey v. Vicary, 161, 162 Phillips V. Coldcleugh, 8 Evans, 81 Phipps V. Hale, 227 Moore, 142 Pincke v. Curteis 25 Pinnington v. Galland, 163 Porafret v. Ricroft, 163, 164 Pope, Re, 132 Potts V. Meyers, 142 Prebble v. Boghurst. 178 Preston v. Tubbin, 140 Price V. Macaulay, 11 Strange, 182 Pride v. Bubb, 232 Prince v. Girty, 84, 101 McLean, 93, 94, 101 Pringle v. Allan, 198 Prosser v. Watts, 32, 191 Puddephatl, In bonin, 230 Pulker v. Evans, 143 Pyrke v. Waddingham, 2. 178, 180. 182, 184, 185 Radford v. Willis, 187, 188 Rae v. Geddes, 17 Rathbun v. Culbertson, 129 Reddam, Re, 146, 273 Reed v. Ranks, 64, 94 Rees v. Rees, 227 Regina v. Barnes, 28 ^ , Currie, 66 Fee, 106 McCorraick, 28 Monk. 95 Registrar of Carleton, Re. 64 Co Reid v. Miller, 220 Whitehead, 43, 46 Richards, Iii bonis, 232 Richards v. Chamberlain, KiT Richardson v. Armitage, 74 Richmond v. Evans, 279, 280 Ricker v. Ricker, 255 Ridout V. Howland, 266 XVlll TABLE OF CASES. Roake v. Kidd, 178 Roberts v. Berry, 24 Karr, W2. Ul', ** Wyatt. 12 Robertson, Re, 144, 2'iV} Robertson v. Lockie, 274 Norris. 27H, 2H2 Robson V. Waddell, 4<>, M Roe V. Braden, 72 Roe V. McNeill, 103 Rogers v. Shortiss, lOo Romilly v. James, 17J) Rose V. Calland. 182, lrtr> Ross V. Harvey, 133 Ross V. McLay, 65 Rossin V. Walker, 160 Royal Can. Bank v. Mitchell, 148 Rumohr v. Marx, 259 Rushton V. Craven, 179 Russell V. Russell, 128 Ruttan V. Levisconte, 128 Smith. 209, 210 Ryan v. Devereux, 225 Ryan v. Miller, 110 -.r Kennedy, 140 Sherbonneau v. Jeffs, 71, 72, 73 Shirley v. Watts, 126, 131 Shore v. CoUett, 171 Shrewsbury R. Co. v. Stour Valley R. Co.. i79 Silverthorne v. Lowe, 123 Simpson v. Dlsmore, 106 Sadd. 16. 19 Smyth, 130. 132 Skipwith V. Shirley, 103 Slater v. Fisksn, 256 Sloi)er V. Fish. 175. 177 Smart v. Sanders, 89 *' Sorenson. 144 Smith V. Bonnisteel, 73 Death, 190 Llovd. 19K Bedford, 106 Robinson. 38 Smith, 228 Watts. 14 ^^. Snarr v. Granite Rink Co.. 159 ^^ Soden v. Stevens. 71 Southby V. Hutt. 80 Spencer v. Topham, 189 Spratt V. Jeffrey, 8 Squire v. Oliver, 124 Stackpoole v. Stackpoole, 199 Stammers v. O'Donohoe. 115. 118 Stansfield v. Hbbson, 196 Staple V. Heydon, 162 Stapylton v. Scott, 177 Stark V. Shepherd, 121 Steer v. Crowley, 39 Stephen v. Simpson 234 Stevens v. Guppy, 18, 95, 215 Stevenson v. Hodder, 118 Stewart v. Alliston, 20 Hunter, 123 Stoddart v. Stoddart, 46 Street v. Commercial Bank, 42, 62 Stroyan v. Knowles. 159 Symons v. James, 7 •f ,:y 5 * I : • t Tanner v. Smith, 12,13 Taylor v. Meads, 232 Martindale, 7 Teevan v. Smith, 169 Thomas v. Dering. 11 i Thompson & Curzon, lie, 251 V. Miles, 88 Milliken, 32 " Ringer, 194 " Thompson, 146 Thurlow V. Mackeson, 278, 281 Titley v. Wolstenholme, 266 TABLE OF CASES. XII Tomlinson v. Hill, i-Jfj Tommey v. White, 27<» Townsenu v. Wilson, 2u«i Tracey v. Lawrence, 274 Tripp V. Griffin, IKi I'ruesdell v. iJook, 135 Trust tV L. Co. v. Gallagher, 137. 108. Shaw, 83. 45, 74. 113 Tully V. Bradbury, 115, IIG, VI Turley v. Williamson, 195 Turnbull v. Forman, 155, 251 Merriani. 1(52 Turpin v. Chambers, 11, IS Tuthill V. Rogers, 194 U rpi)erton v. Nickolson, 24, 25 rrmston v. Pate, 110 Vance v, Cumiuinga, 73 Vancouver v. Bliss, 18, 177 VanNorman v. Beaupre. 141 McCarthy, 129, 130 Vanvelsor v. Hughson, 83, 91, 101 Venn v, Cattel, 25 W Wagner v. Jefferson, 108 Walker v. Powers, 145. 203 Smallwood. 140 Wall V. Bright, 220 Wallbridge v. Jones, 100 Want V. Stallibrass, 20 Warburton v. Loveland, 75 Warde v. Dickson, 20 Warden v. Trenouth. 1 15 Warner v. Jacob, 279, 282 Warren v. Richardson, 10, 20 Waters v. Shade, 42, 71. 72. 75, 70, 115, 127, 170 Watkins v. McKellar, 282 Watson V. Dowser, 137 Watson V. Marston, t>09 Mid.-Walof R. W. Co., 117 Weaver v. Burgens. 147 Webb V. Kirby, 15 " Lymington, 98 Webster & Registrar of Brant, He, 05 Weir V. Niagara Grape Co . 77. 13(» Weld V. Scott, 204 West of ITngland Bank v Nicolls, 81 Western v. Russell, 11 W^heeldon v Burrows, 159, 103 Whitcomb v. Minchin, 282 White v. Lisle, 178 " Neaylor, 01 White, 140 Whitehouse v. Roots, 110 Wickham v. Hawker, 103 Wigle v. Setterington. 59, 01, 73 Wilde v. Fort. 179 Wilkinson V Chapman, 178 Willcock V. Noble, 232 Williams, In honis, 229 Re, 223 ♦♦ V. Craddock, 126 •♦ Edwards, 10, 13 McDonald, 211 Wilmot V. Wilkinkson, 9 Wilson, In bonis, 227 ' Gi mer, 103 Wood V. Griffith, 11 Hurl, 00 Page, 117 Wood, 130 Woodruff V Mills, 260 - : Woods V. Hyde, 274 ' Wotton, In bonis, 230 Wright V. Cadogan. 232 Wright V. Englefield, 232 Wright V. Rogers, 220 Sanderson, 226, 228 Wrigley v. Sykes, 178, 189 Wykham v. Wykham, 178 W^ynn v. Morgan, 24 Yem V. Edwards, 199 Yost V. Adams, 231 Young V. Elliott. 200 Roberts, 208 »ii TITLES TO REAL ESTATE IN FEE SIMPLE. PART I. — Investigation and Proof of Title. CHAPTER I. OF THE DIFFERENT KINDS OF TITLE. 1. Title defined. 2. Mdrketable title. 3. Safrholding title. 4. Doiihtful title. 1 . Title defined. Coke defines Title as follows : — ** Titulus est jnsta causa possidendi quod nostrum rst, and signifieth the meanea whereby a man commeth to land, as his title is by fine or feoffment &c.," {a). The title to land is the vendor's right to it, and must not be confounded with the evidence of the title. Colloquially, the deeds and other documents are sometimes spoken of as the title; but they are more properly speaking the evidence of the (a) Co. Litt. 345. A. T. — 1. 2 DIFFERENT KINDS OF TITLE. title, i.e. they show the ownership to be in the vendor. A title may be perfectly good without deeds at all, as in the case of a title by descent, or a title by possession, both of which depend for their proof upon evidence to be collected and put in the form of certificates or declarations. 2. Marketable title. As a matter of fact every title is either good or bad, that is to say, the ostensible owner, or the person claiming to be the owner either is, or is not, entitled to the fee. And as between persons contending for the land this is generally true, the Court being bound to express an opinion on the title. But, as between vendor and purchaser, titles, as a matter of law, do not fall into the classification of good and bad. The parties are not contending for the property on differ- ent evidences of their claims, as to the respective merits of which the Court is bound to pronounce. The matter to be adjudicated upon is whether the title is so clear that the Court can with confidence force the purchaser to take it ; or whether, without declaring it to be bad, there is such a doubt about it that the purchaser will not be compelled to accept it {b). That title which, so far as its antecedents are concerned, may at all times and under all circumstances be forced upon an unwilling purchaser, is called a market- able title (c) ; and this, and not a doubtful, or even a safeholding title, a purchaser may require {d). 3. Safeholding title. A safe holding title is one which may be perfectly good, the owner being in no way liable to be disturbed in his possession and full enjoyment of the land ; yet he may be (6) Jervoise v. Duke of ISiorthumberland, 1 Jac. & W. 668. (c) Pyrke v. Waddingham, 10 Ha. at p. 8. Id) Francis v. St. Germain, 6 Gr. 636 ; Dart V. & P. 95. mmiM iMMMn J DOUBTFUL TITLE. B unable to adduce the proper proofs of the suflBciency of hia title (e). 4. Doubtful title, A doubtful title is hardly the subject of definition. It may very properly be called an unmarketable title in con- tra-distinction to a marketable one. The doctrine arose out of the practice of the Court of Chancery in cases of specific performance; and from the inability of the Court in any cu- . to form a clear opinion upon the title, the purchaser was not bound to accept it. The subject will be more fully considered in a subsequent chapter. («?) Leith's Wms. on Real Prop. 309. t,^' PURCHASER S RIGHT TO GOOD TITLE. CHAPTER II. or THE purchaser's right to a good title, and how IT MAY BE WAIVED. 1. Open contract ; absolute right to good title. 2. Waiver. (i) By matter before or contemporaneous with the contract, (ii) By the contract itself. (a) Limited enquiry. (b) No enquiry. (c) RescisFwn by vendor on objections by purchaser, (iii) By matter subsequent to the contract. (a) Taking possession ; securing purchase money. (b) Re-sale. (c) Favourable opinion of counsel. (d) Preparation of conveyance. (e) Particular objection. 1. Open contract ; absolute right to good title. A party offering an estate for sale, without qualification, asserts in fact that it is his to sell, and consequently that he has a good title (/), and undertakes, in the absence of express stipulation, to make over to the purchaser the complete and absolute dominion of the soil, saving, of course, the ultimate rights of the Crown. And, inasmuch as land is not the subject of actual manual delivery, as are personal chattels, the vendor is bound to produce such evidence of ownership as will satisfy the purchaser that he (/) Freme v. Wright, 4 Madd. 365. OPEN CONTRACT. 5 has the right to transfer to him all the legal and equitable interest in the land. In Hiern v. Mill (g) Lord Erskine said that '* land is held not by possession, but by title ; not so as to personal chattels; for the common traffic of the ■world could not go on. Therefore a sale in market overt changes the property of a chattel ; and that rule, that possession is the criterion of title to a chattel has been adopted in the Bankrupt Acts : so that, if the owner has permitted the bankrupt to be the visible proprietor the property is divested ; for no one can distinguish the property except by the possession. But that is not so as to land; for no person in his senses would take an offer of a purchase from a man, merely because he stood upon the ground. It is not even jirima facie evidence. He may be tenant by sufferance, or a trespasser. A purchaser must look to his title ; and if, being asked for his deeds, he acknowledges he has not got them, the purchaser is bound to further inquiry." The purchaser's right to a good title does not arise out of the agreement itself, but is a right given by law (/i). Therefore, where there is an open contract, i. e., a mere agreement by the vendor to sell, and by the purchaser to buy, the land, with no conditions, it is the purchaser's right to have a good title made out for him by the vendor. And it is also his right to insist that the question whether the vendor has, or has not, a good title shall be sifted to the bottom before he can be called upon to accept an indemnity, or compensation for a defect, or to let the vendor off his contract (i). But where a purchaser had, since the purchase, by his own act acquired the means of curing a defect in the title, the Court refused to dismiss the vendor's bill for specific performance (j). {g) 13 Ves. 122. [h) Ogilvie v. Foljambe, 3 Mer. 53 ; Hall v. Betty, 4 M. & Gr. 410. (i) Knatchhull v. Grueher, 3 Mer. 137. (j) Hume V. Pocock, L. R. 1 Eq. 662 ; Sheppard v. Doolan, 3 Dr. & War. 1. 6 PURCHASER S RIGHT TO GOOD TITLE. 2. Waiver, The purchaser's right to a clear title may be rebutted (i) by matter before or contemporaneous with the contract ; (ii) by the contract itself; (iii) by matter subsequent to the contract. (i) By matter before or contemporaneous with the contract, " Where the contract is silent as to the title wluch is to be shown by the vendor, and the purchaser's right to a good title is merely implied by law, that legal implication may be rebutted by showing that the purchaser had notice before the contract that the vendor could not give a good title. If the vendor before the execution of the contract said to the purchaser, I cannot make out a perfect title to the property, that notice would repel the purchaser's right to require a good title to be shown. But, if the contract expressly provides that a good title shall be shown, then, inasmuch as a notice by the vendor that he could not show a good title would be inconsistent with the contract, such a notice would be unavailing, and whatever notice of a defect in the title might have been given to the purchaser, he would still be entitled to insist on a good title " {k). And the Court will not relieve a purchaser from the ef- fect of special conditions of sale, where he has had their objectionable nature pointed out to him, and has made en- quiries before signing the contract (/). . (ii) By the contract itself. The purchaser may forego altogether, or limit, his right to a good title by a term or condition of the agreement. But any condition limiting the liability of the vendor in this respect, being in derogation of the purchaser's right, will [k) In re Gloag d' Miller's Contract, L. R. 23 Ch. D. 327. And see Eng. lish V. Murray, 49 L. T. N. S. 35. (1) Hyde v. Dallaway, 6 Jur. 119. • LIMITED ENQUIRY. T be strictly construed. " If a vendor means to exclude a purchaser from that which is a matter of common rip^ht, he is bound to express himself in terms the most clear, and unambiguous, and if there be any chance of reasonable doubt, or reasonable misapprehension of his meaning, I think that the construction must be that which is rather favourable to the purchaser than to the vendor" (m). The right to demand a clear title is sometimes limited by a condition that the purchaser shall take such title as the vendor has (/i), or some particular title described in the condition; or in some other way the purchaser's right to enquiry is limited (o) ; and such stipulations are valid and will, in general, bind the purchaser {p). But they are con- strued strictly in his favour, and he must be clearly shown to have deprived himself by contract of his right ; other- wise, such conditions will be impotent. (a) Limited enquiry. The cases in which the purchaser's right may be abridged have been divided into two classes : — " First, cases in which the terms of the contract preclude the purchaser from making requisitions upon the vendor as to his title ; and secondly, cases in which they preclude him, not only from making enquiries from the vendor as to his title, but from making any investigation anywhere about the title "(^7). In cases falling within the lirst class, though the purchaser cannot make requisitions upon the vendor, he is at liberty to show aliunde that the vendor cannot make a good title. Hence, in Jones v. Clifford, where the condition was that the purchaser ** should not require the production of, or (w) Per Sir J. L. Knight Bruce, V. C, in Symofis w.'James, 1 Y. & C. C. C. 490. And see Me Marsh db Earl Granville, L. K. 24 Ch. D. 11. (n) Hume v. Pocock, L. R. 1 Eq. 423 ; 1 Ch. App. 379. (o) Monro v. Taylor, 8 Ha. 51, 71 ; Corrall v. Gattell, 4 M. & W. 734 Taylor v. Martindale, 1 Y. & C. C. C. 658. (p) Freme v. Wright, 4 Madd. 365. (g) Jones v. Clifford, L. R. 3 Ch. D. 790. ■' • 8 PURCHASER S RIGHT TO GOOD TITLE. investigate, or make any objection in respect of the prior title " — a point of commencement having been fixed by the contract — the purchaser was not precluded from showing that the vendor had no title to the fee, which was in fact in the purchaser subject to a lease to the vendor (r). So, where the parties agreed that the vendor (a lessee) should " not be obliged to produce the lessor's title," it was held that, though the vendor was relieved from showing the title of his lessor, the purchaser was not prevented from taking objections which he had discovered himself (s). And where the vendor represented the property to be sold as ** freehold," it was held that the purchaser was not bound to take an incumbered freehold title, notwithstanding a condition that he should not investigate or take any objec- tion to the title (t). (b) oVo enquiry. But in cases falling within the second class the purchaser is absolutely precluded from enquiry. So, where an agree- ment by a lessee to sell two leases " as he holds the same," bound the purchaser to accept a proper assignment without requiring the lessor's title, it w-as held that he was not at liberty to object to the lessor's title (u). And where the purchaser of a term agreed that " the lessor's title will not be shown, and shall not be enquired into," it was held that enquiry was precluded for every purpose, and he was debarred from showing by Acts of Parliament that the lessors had no power to grant leases (*;). So, by an agree- ment that the purchaser is to take such title as the vendor (r) See also Darlington v. Hamilton, Kay 550. (s) Shepherd v. Keatly, 1 Cr. M. & R. 117. (t) Phillijjs V. Caldcleugh, L. R. 4 Q. b. 159. (w) Spratt V. Jeffrey, 10 B. & C. 249. This case seems to conflict with Shepherd v. Keatly, supra, which is said by Sir Edward Fry (Fry Sp. Perf. 561) to overrule it ; but in Duke v. Barnett, 2 Coll. 337, the cases are said to be reconcilable. (v) Hume v. Bentley, ^ De G. & Sm. 520. RESCISSION BY VENDOR. 9 has received (?r), or to take his title without dispute (x), the purchaser is precluded from raising any objection to the title. ^ . - - ^ But if there be any representation on the part of the vendor as to his title uj^on which the purchaser is to rely and the representation proves to be untrue, such a condition will not bind the purchaser, and he may even after con- vevance rescind the whole contract. So it was held in Nash V. Wooderhoiise (?/), where it was said, "If the vendor said, I am owner in fee of the property, and then added a condition, * the purchaser shall accept my title, and shall not go behind the conveyance from me to him, or ask any questions, or make any requisitions whatever,' it appears to me that he would be precluded from making those objec- tions if that statement was true; but that if the «itatement which accompanied the condition was in itself an untrue statement, then he would not be bound by the condition at all, and would have a right to say, ' AlthoU}4,ii taking you at your word, taking your statement of title, I may not ask questions, yet if it turns out that that statement upon the faith of which I was content not to ask questions, is an untrue and an incorrect statement, I am not bound any longer by the condition not to ask questions.' " (c) Rescission by vendor on objections by purchaser. It is frequently made a condition of the agreement, that if the purchaser shall insist on any objection to the title which the vendor shall be unable or unwilling to remove, he shall be at liberty to rescind the contract and return the deposit without interest, costs, or further compensation. Various forms of the condition, differing but little in effect, will be found in the reports of the cases cited below. In practice the condition is now by its wording extended to (id) Wilmot V. Wilkinson, 6 B. & C. 506. (x) Duke V. Burnett, 2 Coil. 337. (y) 52 L. T. N. S. 49. 10 PURCHASER S RIGHT TO GOOD TITLE. ccnveyance, quality of estate, evidence of title, etc. But in 3ne case (z) Pearson, J., gives it as his opinion that it is noi a proper condition to be inserted with respect to the conveyance. This stipulation as rej^ards title, though not unreason- able, illegal, or improper (a), is for the sole benefit of the vendor, and is introduced for the purpose of protecting him against difficulties as to title (h), or to meet the case of a purchaser insisting upon objections which the vendor is unable to remove either absolutely or without incurring an unreasonable amount of expense (c). It is, in a sense, a depreciatory condition, but being one which a prudent own- er would employ it may be used on a sale by a mortgagee and will bind the mortgagor {d). It is construed strictly in favour of the purchaser (e). And it is said that notwith- standing this condition the vendor must perform all the duties of a vendor, with this sole exception that they must be reasonable. He cannot compel the purchaser to take an imperfect abstract if he can make a complete one (/). And he must do all he can to make out his title (g). But in some recent cases where the vendor would have been put to great trouble and expense in removing the objec- jections, it has been held that the purchaser's conduct in insisting upon the objections was unreasonable and that the vendor had an absolute right to rescind (h). (z) Hardman v. Child, L. E. 28 Ch. D. at p. 718. (a) Williams v. Edwards, 2 Sim. 83 ; Hudson v. Temple, 29 Beav. 543. (6) Engel v. Fitch, L. R. 3 Q. B. 314. {c) Hardman \. Child, Ij.n. 28 Ch.!). 712. (d) Falkinerw. Equitable Rev. Socy, 4 Drew. 352. {e) Morley v. Cook, 2 Ha. 115 ; Hudson v. Temple, 29 Beav. 543 ; Greaves V. Wilson, 25 Beav. 290. For remarks ou special conditions, see Hyde v. Dallaway, 4 Beav. 606. (/) Greaves v. Wilso7i, 25 Beav. 293. (g) Hudson v. Temple, 29 Beav. 543. And see Morley v. Cook, 2 Ha. 114 ; Hobson v. Bell, 2 Beav. 17. {h) Mawson v. Fletcher, L. R. 6 Ch. App. 94 ; Re G. ].s WHAT CONSTITUTES REGISTRATION. 49 from the Crown and wills, shall be registered by the deposit of the original instrument, or by the deposit of a duplicate or other original part thereof with all the necessary affi- davits " (m). If the question depended upon these sections of the Act it might reasonably be argued that the deposit of the instrument was sufficient, and that upon the deposit the party registering would be entitled to evidence of regis- tration. Whatever may be the true interpretation of these clauses, it is certain that in practice Crown grants are never, while wills are always, entered in full in the books. Yet both stand in the same position under the words of the Act. But little reliance can be placed upon these clauses in striving for a solution of the question, for (except sec. 64) they in fact refer to the preparation for registry of various peculiar instruments of which the originals cannot be parted with and of which duplicate originals are never made. Other duties than the mere receipt of these docu- ments are to be performed by the Registrar, and we must still look to the other and more general clauses to ascer- tain whether the performance of these duties is essential to complete registration. Section 55 is the only section of the Act which approaches a definition of registration, but it is most ambiguous. The terms " entered " and " registered " are used as if they were synonymous; and the expression "upon and by" is mis- leading. If, instead of using the expression " upon and by", the word " upon " had alone been used, the section would have been directory, merely requiring the registrar to register, i. e. transcribe or enter the instrument at full length when produced, omitting his own certificate. The use of the expression " upon and by the delivery to the Registrar " imports that, when the act of delivery is com- plete, thereupon and thereby registration is eti"»cted. But this construction cannot with certainty be placed ^n the (m) Sec. 64. A. T. — -d. 50 REGISTRATION. clause, inasmuch as it declares that the instrument shall be registered " at full length, including every certificate and affidavit, excepting certificates by the Registrr?", accom- panying the same," which clearly imports transcribing or entering the instrument at full length in the book upon delivery. If we reject altogether the signification of the word "by" in this clause, we have left a mere direction to the Regis- trar to enter the instrument at full length. This direction is repeated in section 59, and some additional duties are required, by the same section, to be performed. Section 33, as we have seen, directs the Registrar to enter in the abstract index the particulars of the instrument and its registration, " in addition to all entries by law required," All the duties required by sections 33, 55, and 59 stand upon the same footing. As far as the words of the statute are concerned one is as important as another. The classifica- tion of these duties into those that relate to registry and those that are designed to evidence it, is ore that is so obvious that it forces itself upon us ; and we are thereby enabled to reject, as not being essential to registration, those acts which are merely intended to evidence it. But this classification leaves all the duties relative to registry i.e. entry at full length, filing and indexing, classed together as duties of equal importance and essential to registration, or else it is left to judicial discretion to determine which are essential and which are not. According to Harrison, C.J., the entry at full length and filing are absolutely necessary. The duty of entering the particulars in the abstract index is said not to be essential, for it presupposes registration. That is not, however, an inevitable rendering of the Act. Section 3b, which requires entry in the abstract index, does not pre- suppose either filing or entry at full length, unless they are included in the signification of the word " registration " as used in that clause. But we cannot concede that point WHAT CONSTITUTES REGISTRATION. t^ when the very question for determination is the meaning of tlie word ** registration." In order that the Kegistrar may- make the entries required by section 33, two things must have been determined, viz., the registration number of the instrument and the date of its registration. It is a plausible argument to say that this presupposes registration. But it is quite consistent with the hypothesis that the entry in the abstract index is an essential part of registration. If indeed it were the only duty required of the Registrar the clause would be quite intelligible. The duties of the Registrar can- not all be performed literally upon production to him of the instrument, as section 59 words it. That section directs that he shall, upon production of the instrument, endorse on it the day, hour and minute in which the instrument i^as entered and registered, and also in what book the same has been entered. This clause cannot be literally satisfied, for the entry at full length and filing of the instrument take place some time after the delivery of the instrument to the Registrar. In order, therefore, to give full effect to this group of clauses, we must resort to the fiction that all the duties of the Registrar are supposed to be performed simul- taneously as soon as he has received the instrument. Upon the literal interpretation of section 59 the Regis- trar cannot endorse the certificate of registration upon the instrument until c'fter it has been transcribed at full length in the proper bool for entry ; because he has to indicate the book in which it has been entered, and the " certain year, month, day, hour and minute in which such instru- ment is entered and registered." The entr}^ and registry are here spoken of as one Act. The form of the certificate prescribed by this section provides for the insertion of but one date, i.e. the actual minute of the day of the entry and registration. No reference, it will be observed, is made to the filing of the instrument ; the entry is deemed to be the matter to be particularly certified. The Registrar can therefore give a true certificate without actually filing 52 REGISTRATION. the instrument, and the certificate presupposes that regis- tration is complete. If the minute of the entry is to be fixed when the copyist begins to transcribe the instru- ment, the filing (by which is meant, the depositing of the instrument in a place prepared for it) cannot take place until after registration ; nor can the instrument be filed simultaneously with the completion of the entry in the book, as a matter of physical possibility, if we take that minute as the minute of registration. Again, one is forced to say, this clause cannot be literally satisfied. And the opinion may be ventured that the duty of filing the instrument said by Harrison, C.J., to be paramount, i.e. essential, might be found not to be absolutely necessary in order to perfect registration. We have seen that as the duties of the Eegistrar are to be performed at different times, i.e., as the receipt, entry at full length, indexing, and filing of the instrument must of necessity be performed at successive intervals of time, the actual minute of registration cannot be determined if these acts are all essential to registration, unless we resort to the fiction that they are all supposed to be performed simulta- neously upon receipt of the instrument. The minute in which he receives the instrument would on this hypothesis be the minute which the Eegistrar must certify as the time of registration. If on the other hand we look upon delivery to the Eegis- trar as sufficientfto complete registration, so as to entitle the party registering to evidence of registration, the minute in which the delivery takes place is the minute which is to be certified on the instrument. It is not a matter of purely theoretical interest to ascer- tain the precise time atj^which registration is complete ; it is a matter of practical, and sometimes of vital importance. And a consideration of the clauses of the act grouped under the sub-heading ** Effect of registering or omitting to register " will show that there exist strong arguments in WHAT CONSTITUTES REGISTRATION. !f9 favour of the view that registration is complete, in so far as the party off^^ring an instrument for registration is con- cerned, as soon as he has delivered the instrument to the Registrar. By section 75, all wills are to be registered within the space of twelve months next after the death of the testator, or within the same period of time after the removal of any impediment to registration ; otherwise the will shall not be valid as against subsequent purchasers or mortgagees. If a will were delivered to the Registrar Oi> the last day of the twelve months, but were not entered at mil length and filed until the next day, could a purchaser for value from the heir, who had previously registered without notice of the will, claim that it had not been registered within the twelve months. If entry at full length and filing are absolutely essential to registration there would be a great deal to be said in his favour. And even if the Registrar, anticipating the book in which the will would necessarily be entered, were to give his certificate of regist::ation as of the time of delivery, it would still be open to the purchaser to show that the registration actually took place at a later date. For the Registrar's certificate is only prima facie evidence, and may be shown to be untrue (7i). So with regard to Treasurers' deeds for taxes, and Sheriffs' deeds of lands sold unde.* process, provided for by section 76. By section 80, *' Priority of registration shall prevail unless before such prior registration there has been actual notice of the prior instrument by the party claiming under the prior registration." The effect of this section was considered in Millar v. Smith (o), where Gwynne, J., said, " To give literal effect to this clause would be to deprive a purchaser for valuable consideration without any notice (n) K. S. O. cap. Ill, sees. 56, 59 ; Doe d. McLeanv. Manahan, 1 U. C. R. 491 ; Robson v. Waddell, 24 U. C. R. 580. (o) 23 C. P. 47, 57. 54 REGISTRATION. whatever of the prior instrument before he got his deed and paid his purchase money, if actual notice of such prior instrument should be brought home to him in the interval between his getting his deed and putting it on registry." The Court held this to be the inevitable construction of the Act. Notice then becomes effectual if brought home to the subsequent purchaser at any time before registration of his conveyance. If registration is complete only upon the entry at full length and filing of the instrument, a purchaser without notice may be deprived of the benefit of his deed upon receiving notice at any time after delivery of the instrument to the Eegistrar and before entry at full length and filing, by the production to him of a prior secret con- veyance. And it is evident that the Kegistrar's certificate endorsed upon his conveyance will be no protection to him, if in fact the instrument has not actually been transcribed in the books and filed. So, entry in the books without filing, or filing without entry in the books would be suffi- cient to destroy completely the effect of the Eegistrar's certificate of registration if these duties are both essential to complete registration. On the other hand, it may well be argued that a person searching the registry and finding M' original instrument filed in the proper place, and no enwy at full length in the books, is completely protected by purchasing and registering his conveyance, notwithstanding that a prior purchaser holds a conveyance endorsed by the Eegistrar with a certificate of registration. And so it was held in Doe d, McLean v. Manahan (p), decided under the Act 35 Geo. IIL cap. 5, sec. 5. There is no direction in this Act as to the manner in which registration was to be effected ; but the Eegistrar was to endorse a certificate on the deed of the day, &c., on which the memorial was entered and registered, expressing also in what book it was entered. (p) 1 U. C. R. 491. WHAT CONSTITUTES REGISTRATION. 65 In this case there was no entry in the hooks, and no memorial was filed in the office, but a marginal note was found in one of the books giving the number of the deed, day and hour of registration and pages of the book in which it was certified to have been registered. It was held that there was no registration, and that a subsequent registered deed took priority. Both gran^ aes were perfectly innocent. The Court refused to regard the certificate of registration as conclusive, declaring that to do so would be to determine that all persons held " their estates at the mercy of a Registrar, who could give effect to deeds at his pleasure by giving false certificates of registry never made." While trying to avoid this result the Court in effect actually attained it when thev arrived at the decision which was given ; for the prior grantee had done all that he could do by delivering his conveyance to the Registrar, and demand- ing and receiving evidence of registration. Under this decision a purchaser is completely at the mercy of the Registrar, and holds his estate by a precarious tenure indeed. The Registrar has power by delay or neglect, very trifling it may be, to postpone indefinitely the period of time up to which a purchaser may be aftected by notice ; and he has power, by omitting to transcribe the instrument or to file it, to make it fraudulent and void as against a subsequent instrument which he does transcribe and file (q). And apparently there is no power to relieve against thii> except as against the Registrar, for it is enacted that priority of registration shall prevail except in cases of actual notice. As a matter of practice registration is always considered complete when the instrument has been received by the Registrar. It is the universal practice amongst convey- ancers, having regard to the fact that a purchaser is affected by notice at any time before registration, not to pay over purchase money until after delivery of the instru- (g) R. S. O. cjap. Ill, seo. 74. 56 REGISTRATION. ment to the Registrar ; but after such delivery payment is considered to be safe. It is also a universal practice for the Registrars to certify the registration as having taken place at the moment when the instrument was received for registration. The particularity of the Act in requiring him to certify the very minute in which the instrument is registered points to an instantaneous, or brief act, on the p-*rt of some one ; and fhe entry and filing, as we have seen, are successive acts, not to be performed in a minute. Again, the diligence of the parties is of no avail if the Registrar by the internal regulations of his office can settle priorities between parties. Priority is intended by the Act to be determined by the delivery to the Registrar, and he is to enter the instruments in the order in which they are received by him. But if he does not do so are the priorities altered? Whatever may be the true construction of the Act, if a party be injured by the Registrar's omission he has a cause of action against him (r), if the damage accrued before he had notice of the omission (s). And an action will also lie against the Registrar for a wrongful Act {t), . 3. Leaseholds. The Act of 1795, 35 Geo. III. cap. 5, sec. 11, excepted from its operation leases at a rack rent, and every lease for a term not exceeding twenty-one years, where the actual possession and occupation went along with the lease. The Act of 184«6, 9 Vict. cap. 34, sec. 18, enacted that its provisions should not extend to any lease for a term not exceeding twenty-one years, when the actual possession went along with the lease. (r) Harrison v. Brega, 20 U. C. E. 324. (») Brega v. Dickey, 16 Gr. 494. (t) Ontario Industrial Loan Co. v. Lindsey, 4 Ont. R. 473. LEASEHOLDS. J57 The Act of 1865, 29 Vict. cap. 24, sec. 67, declared that it should not extend to any lease for a term not exceeding seven years, where the actual possession went along with the lease ; but it was expressly declared to extend to every lease for a longer term than seven years, and that enact- ment still remains in force (m). When a lease is made for a term less than that excepted by the Act, but contains a covenant for renewal for a term, which, when added to the original term makes a period longer than that excepted by the Act, it does not require registration if the lessee is in possession {v). So, a lessee in possession under an unregistered lease for four years, containing a covenant for renewal for four >ears more, was held entitled to his renewal as against a mort- gagee who registered during the first term of four years (w) The possession which is required of the lessee is posses- sion under the lease by which he claims. Where he claims under a present possession and a lease for a term to com- mence infuturoy his title will not prevail against a convey- ance registered before the commencement of the term. " The unregistered lease and the possession," said Richards, C. J., " are connected together, and the two united prevail against the registered title " {x). Therefore, where a tenant in possession under a current lease for five years procured a second lease for four years, to commence on the day following the day on which the current lease would expire, and before the second term commenced a mortgage made by the lessor and registered during the currency of the first lease became absolute, it was held that the mortgagee was entitled to possession as against the tenant claiming under t]ie second lease. The possession of the tenant at the time of the registration of the mortgage was a posses- (m) K. S. O. cap. Ill, sec 37. (v) Doe d. Kingston Building Soc'y v. Rainsford, 10 U. C. R. at p. 241. (if) Latch V. Bright, 16 Gr. 653. [x) Davidson v. McKay, 26 U. C. R. at p. 310. 58 RE0I8TRATI01.. sion under the first lease, and did not go along with the second lease under which, as yet, he had no right to pos- session, and therefore the second lease, being unregistered, was void as against the registered mortgage (y). The possession of a lessee under a lease within the exception is a substitute for registration. The lessee, in order to retain priority, must therefore either register his lease or take possession. If a subsequent grantee or lessee without notice of the first lease registers, either before the first lessee registers or before he takes possession, he will gain priority. So, as between assignees of a term claiming under the same lessee, if the first assignee would retain priority over a second assignee without notice, he must either take pos- session or register his assignment. If he takes possession, his possession goes along with the lease and he is pro- tected {z). An assignment of a lease does not require to be regis- tered merely because the lease has been unnecessarily registered (a). And a lease which does not require regis- tration need not be registered merely because it contains an agreement to pay compensation to the lessee for a termination of the lease before the expiration of the term, and a license to the lessee to remove any buildings he might erect (b), • 4. Equitable interests. Before the Act of 1865 equitable interests were not affected by the Kegistry laws. It is true that the Act 13 & 14 Vict. cap. 63, in express terms declared that noth- ing contained in it should afifect either the equity doc- trine of purchase for value without notice, or the rights (y) Davidson v. McKay, 26 U. C. R. 306. {z) Doe d. Kingston Building Soc'y v. Rainsford, 10 U. C. R. 236. (a) Ihid. b) Latch V. Bright, 16 Gr. at p. 656. EQUITABLE INTERESTS. 59 of equitable mortgagees as recognizod in the Court of Chancery. But there is no apparent difference in the cases decided before, and tlijse decided after, this Act. Indeed, Esten, V.C., said that the mention of the rights of equitable mortgagees was only exempli gratia (c). Hence it was said that, as between persons having equitable interests, priority might be gained by prior registration, subject to its effect being defeated by notice (d). An equity to reform a conveyance in trust for creditors, by inserting a parcel of land omitted by mistake, was under the old law enforced as against a subsequent registered judgment creditor (e). Even as against a subsequent grantee, however innocent, the equity would have been kept alive (/ ) . And an equitable sub-mortgage created by deposit of mortgage deeds, accompanied by a memorandum in writing signed by the mortgagor, agreeing to execute a power of attorney to emnower the mortgagee to transfer or control the mortgages so deposited, was held not to require registration (^f). In 1865 the Act 29 Vict. cap. 29, was passed, by section 66 of which it was enacted, that " no equitable lien charge or interest affecting land shall be deemed valid in any Court in this Province after this Act shall come into opera- tion, as against a registered instrument executed by the same party, his heirs or asp.igns." This enactment was continued by the Act of 1867, and reproduced in section 81 of R. S. 0. cap. Ill (/t). This enactment was said by Mowat, Y.C., not to be {c) McMaster \. Phipps, 5 Gr. '6Q1. (d) Bethune v. Caleutt, 1 Gr. 81. The contest in this case was between third and fourth mortgagees, whose interests, though in fact equitable, were evidenced by instruments capable of registration and therefore within the Act. (e) McMaster v. Pkipps, 5 Gr. 253. (/) Wigle V. Setterington, 19 Gr. 519. (g) Harrison v. Armour, 11 Gr. 303. (h) See Canada Perm. L. dt S. Co. r. McKay, 32 C. P. 51 ; Cooley v. Smith, 40 U. C. K. 643. 60 REGISTRATION. retrospective (i), but in subsequent cases (j), this view was not adopted. In Bell v. Walker^ Blake, V.C, said, " It is said the registry laws do not apply, because the equity of the plaintiff had arisen before the passing of the Act under which the defendant seeks protection. The first of these Acts, which was passed on the 18th September, 1865, did not come into force until the 1st January, 1866. Over two months were thus given in which to assert these rights and after that period they were not to be deemed valid in anv Court in the Province. It is clear this clause strikes at all such claimy, no matter when they may have arisen. To hold otherwise would be to postpone for many years the full effect of this salutary enactment, without anything in the Act to warrant such a construction." • h: It will be noticed that the Act deals with the case of an equity as against a registered instrument {k) . Possibly those equitable liens, charges, or interests which are aimed at by this section are such equities only as are incapable of registra- tion (Z) — such equities as those mentioned by Blake, C, in McMaster v. Phipps (m) — equitable rights arising out of parol agreements partly performed, resulting trusts where land has been purchased with the money of one and the conveyance taken in the name of another, an equitable right to set aside a deed for fraud, or undue influence, or on grounds of public policy, a vendor's lien, or an equity to reform a deed or mortgage. Such equities are not created by written instruments and are incapable of registration. They do not all come within the peculiar wording of the section. For instance, a purchaser's right to enforce specific performance of a parol agreement to sell land (?) McDonald v. McDonald, 14 Gr.l33. (.;■) Bell V. Walker, 20 Gr. 558; Grey v. Ball, 23 Gr. 390; Miller v. Brown, 3 Oat. R. 210 ; Core r. Ont. L. and L. Co., 9 Ont. R. 236. {k) See Grey v. Ball, 23 Gr. at p. 394. (/) Forrester v. Campbell, 17 Gr. at p. 385. (m) 5 Gr. at p. 258. EQUITABLE INTERESTS. 61 partly performed, is not an equity that can by any possi- bility conflict with ** a registered instrument executed by the same party." And the like must be said of a resulting trust. On the other hand, an equitable right to set aside a deed obtained by fraud or undue influence, or a right to enforce a vendor's lien where the conveyance has been delivered and registered, are both rights which are neces- sarily set up against instruments executed by the parties complaining. No distinction, however, can be made between them, both classes being undoubtedly void and mcapable of enforcement as against the registered title. But a party claiming under a registered instrument taken and registered with notice of a prior equity takes subject to the equity (w). The conscience of the party so claiming under a registered instrument is affected by the notice which he has acquired, and " it never was the intention of the legislature to give a priority of right to commit a fraud '' (o). It has been pointed out by Mowat, V.C., that it is not every equitable interest that is avoided as against the registered title (p) ; and he instances conveyances and mortgages of equities of redemption, interests arising under trust deeds, written contracts for the sale of lands. With regard to all equitable interests created by deed or other instrument capable of registration it may be said that they do not come within the section under consideration. Sec- tion eighty of the Kegistry Act enacts that " priority of registration shall prevail, unless before such prior regis- tration there has been actual notice of the prior instru- ment by the party claiming under the prior registration." By this section the priorities of competing equities created by instruments capable of registration are settled ; for it manifestly refers to instruments capable of registration (n) Forrester v. Cainpbell, 17 Gr. 379 ; Wigle v. Setterington, 19 Gr. 512; Bank of Montreal v. Baker, 9 Gr. 298. And see White v. Neaylor, L. R. 11 App. Ca. 171. (o) Latouche v. Lord Dunsany, 1 Sch. & L. at p. 159. ( p) Forrester v. Campbell, 17 Gr. at p. 384. 62 REGISTRATION. whether they create legal or equitable interests. A dis- tinction must therefore be drawn between such equities and those which are not evidenced by instruments capable of registration. The former are governed by section eight}' of the A t, while the latter are dealt with by the eighty- first section. A second mortgagee loses his priority if he does not register before a third mortgagee without notice — not because his estate is an equitable one, but because priority of registration is to prevail (q), : • (i) Tacking. Amongst other equities there is the right of a mort- gagee to tack, which has been destroyed in so far as it interferes with the registered title. Before 13 & 14 Vict, cap. 63, registration not being compulsory, and not being per se notice, the doctrine of tacking was not affected by the registry laws (r). But by section four of this Act it was recited that the doctrine of tacking had been found to be productive of injustice, and it was enacted that thereafter conveyances should be taken according to priority of regis- tration. It also abolished tacking as between unregistered mortgagees, for it. declared that where the conveyances were unregistered they should be taken in ordex of the time of their execution. The law remained thus until 31 Vict. cap. 20, when it was enacted by section 68 of that Act that tack- ing should not prevail against the provisions of the Act, and all previous Acts were repealed. The result of this is that tacking may take place apart from the Kegistry Act, but as against that enactment it shall not prevail. This enact- ment is reproduced in the latter part of section 81 of the Eegistry Act (s). (ii) Consolidation, Consolidation must not be confounded with tacking, (q) See Cooley v. Smith, 40 U. C. R. 543. (r) Street v. Commercial Bank, 1 Gr. 169. (,s) See Dominion Savings Society v. Kittridge, 23 Gr. at p. 634. CONSOLIDATION. 63 though it was attempted in one case (0, where the plaintifif Company claimed to consolidate their mortgages, to show that the provisions of the Registry Act as to tacking pre- vented it. ' - . ^ Though there is no express legislation respecting con- solidation, it is affected indirectly by the Registry Act. Spragge, C, laid it down that " the policy of our legislation has been to allow no effect to occult equities, and in the case of transfers of real estate, whether absolutely or by way of mortgage, that men dealing in real estate should be able to find the state of the title by search in the registrj^ office, and in one or two other public offices" (u). The right to consolidate is a mere equity, and though it may be enforced against the mortgagor, the mortgagee claiming the right as against a puisne incumbrancer of one estate must establish notice of the equity as against him (r). And so where the plaintiff held three mortgages upon estate A., and the defendants held a first mortgage thereon, and also a mortgage upon esti.,te B. from the same mortgagor for a different debt, it was held that they could not consolidate as against the plaintiff, he having taken his mortgages of estate A., without notice of the defendants' right of consoli- dation as against the mortgagor (m;). 5. Registrar's abstract. By section 23 of the Registry Act (x) the Registrar shall, when required, furnish abstracts of or concerning all instruments or memorials registered, mentioning (i) any lot of land as described in the patent thereof from the (t) Dominion Savings Society v. Kittridge, 23 Gr. 634. And see Brewer V. Can. Perm. Building Society, 24 Gr. 570- (u) Johnston v. Reid, 29 Gr. 299. (v) Dominion Savings Society v. Kittridge, 23 Gr. 635. (re) Brower v. Can. Perm. Building Society, 24 Gr. 509 ; Johnston v. Reid, 29 Gr. 293. (x) K. S. O. cap. ill. 64 REGISTRATION. Crown ; or (ii) any lot described by number or letter on any registered map or plan subsequent to the registra- tion of such map or plan ; or (iii) any part of a lot where the same is clearly described and can be identified in con- nection with tbe chain of title or has been ascertained by actual survey ; and of and concerning all wills, deeds, orders, or other instruments recorded as may be requested of him in writing, if a writing is demanded by the Registrar. The Registrar must certify as to all instruments regis- tered ; it is not sufficient for him to certify that " the above conveyances appear of record ;" and a mandamus will lie to compel the delivery of a proper abstract (y). The Registrar is not bound to give extracts or certificates of such portions of the lot as are not asked for, nor can he compel a person to pay for them. His extracts should be confined to that part which is asked for {z). ^^ v/ If the Registrar omits any registered instrument from his abstract he is liable to an action of damages (a). But where a Registrar omitted a mortgage from his abstract, a pur- chaser who relied on the abstract was not protected in respect of payments made after he had discovered the mistake ; and the Registrar having bought the omitted mortgage after he discovered his error was held entitled to foreclose it (b). A Registrar's abstract is not evidence of title (c), or of a registered instrument (d). The abstract should be made up from the registered in- struments themselves and not from the abstract index, but it is frequently a mere copy of the latter, and, as such, is almost useless for the purpose of aiding an investigation of the title. The abstract index seldom shows ail the names (y) Re Registrar of Carleton, 12 C. P. 225. (z) Hope V. Ferguson, 17 U. C. R. 219. (a) Harrison v. Brega, 20 U. C. R. 324. (6) Brega v. Dickey, 16 Gr. 494. * (c) Gamble v. McKay,! C. ¥.319. {d} Reed v. Ranks, 10 C. P. 202. registrar's abstract. .65 of the parties, and never shows whether words of inheri- tance are used in the deed, nor does it show the covenants or other essential portions of the deeds. The Registrar should he asked to furnish all the essential particulars of the registered instruments affecting the title, if it is intended to rely upon his abstract • and apparently he can be com- pelled so to moke up his abstract (e), :. ,. ^^ 6. Rigid to inspect hooks. . By the 85 Geo. III. cap. t, sec. 8, the Registrar was directed to make searches " as often as required " and to " give certificates under his hand, if required by any person." The statute 9 Vict. cap. 34, sec. 15, was to the like effect. There was no specific direction that the books or memorials should be exhibited to any person who desired to search. By the 13 & 14 Vict. cap. 63, sec. 8, registration of a deed was to constitute notice in equity of the registered deed. This was the state of the law when Re Webster & Registrar of Brant (/) was decided, wherein it was held that the Registrar was not bound to permit inspection of the books by the person searching. By the 29 Vict. cap. 24, sec. 18, it was enacted as follows : *' The Registrar shall, when required, and upon being tendered the legal fees for so doing, make searches and furnish copies and abstracts .... and shall exhibit the original registered instrumt-nt, and also the books of the office relating thereto when the party desires to make a personal inspection of such books, &c." This clause was re-enacted in 31 Vict. cap. 20, sec. 20, and is reproduced in R. S. 0. cap. Ill, sec. 23. In Ross v. McLay (g), Mr. Justice Gait thought that the abstract index should be exhibited to any person desiring to search if required. (c) Pv. S. O. cap. Ill, sec. 23 ; Re Registrar of Carleton, 12 C. P. 225. {/) 18 U. C. K. 87. (y) 26 C. P. !90. A. T. 5. 66 REOISTRATION. Hagarty, C. J., was not clear, but stated his strong impres- sion to be that the index was open to the public as being one of the ''books of the office," made up at the public expense and not expressed to be for the convenience of the Registrar alone. In McNamara v. McLay (h), the Court of Appeal was equally divided on the same question. Burton and Morrison, J J. A., holding that the index was not open to inspection, while Spragge, C. J. 0., and Patterson, J. A., held that it was, as being one of the books of office. It is conceded that access may be had to all other books and to the original instruments themselves, but as opinion is un- settled as to the right to inspect the Abstract Index it is proposed to give reasons for an opinion in favour of the right to inspect it. (i) It is one of the books of office. The Act 29 Vict. cap. 24, was the first Act which required the Registrar to exhibit the original instruments and books of office relating thereto. The Act is divided into groups of clauses distinguished by head lines, and in the group which is entitled " Books of office " we find it enacted (i) that the Registrar shall com- pile a book to be called the Abstract Index, in addition to all other books required to be kept. It is a rule of con- struction that where a statute is divided into groups of clauses distinguished by headlines, the headlines are con- sidered to be portions of the Act, and are to be read as explaining the sections which follow them(j). Thus in Wood V. Hurl {k), it was held that the headline controlled and limited the operation of a clause of an Act which, but for the headline, would have been unlimited in its applica- tion [1). Applying this rule to the Act in question it is (h) 8 App. R. 319. . • ; • (i) Section 33. (j) Eastern Counties R. W. Co. v. Marriage, \) EL. L. C. 32. (k) 28 Gr. 146. {I) See also Lang v. Kerr, L. R. 3 App. Ca. 529. But see Regina v. Currie, 31 U. C. R. 582, where a headline was held manifestly not to control suc- ceeding clauses. RIGHT TO INSPECT BOOKS. 67 impossible to arrive at any other conclusion than that the Abstract Index is one of the books of the office. This grouping has been continued and reappears in the Revised Statute. , . (ii) It relates to the original instruments. By section 33 of the revised statute, " every instrument registered . . . and the names of every person to each instrument, and the nature of it, . . . . the numbers of registra- tion of all such instruments, .... and the day, month and year of their registration, and the consideration or mortgage money mentioned therein, shall by the Eegistrar in addition to all. entries bylaw required, be entered in regular order and rotation under the proper heading of each such separate parcel or lot of land mentioned in such instrument." It will be observed that the Abstract Index is to be made up from the original instruments themselves, and therefore it relp>tes thereto. (iii) The direction to the Eegistrar to make searches is cumulative to the public right to do so, not exclusive of it. The Registry ict (m) requires two things of the Registrar, (i) to make i-earches when required, (ii) to exhibit the original instruments and the books relating thereto " when the party desires to make a personal inspection thereof." The ordinary interpretation of this enactment gives the party searching the right to elect whether he will personally make the search or require the Registrar to make it. If he elects to make a personal search the Registrar is to exhibit all the books and instruments relating to the title ; but if the Registrar is required to make the search he is bound to complj^ with the requisition. It has been said that inasmuch as under the old law (as interpreted b}^ Webster's Case), the Registrar had the exclusive right to make searches, the amendment which gives the public the right to inspect the books is not to be construed as inter- Cm) Sec. 23. 68 REGISTRATION. fering with his right, but merely gives the party searching the new right to inspect each book or instrument after the Registrar has selected it as relating to the title. The old statute, however, is open to a more liberal construction than that placed upon it in Webster's Case. The books are kept for the convenience and information of all interested per- sons, who have an indisputable right to a knowledge of their contents upon payment of proper fees. Assuming this right to exist, apart from the express words of the statute, they have by the express words of the statute the additional right to the assistance of the Registrar when required. The words " when required " are super- fluous unless they refer to the right of the party searching to demand the assistance of the Registrar as a right cumu- lative to his right to make a personal inspection. (iv) Registration is per se notice, and therefore the books should all be open to inspection. It seems to have escaped observation at the time Webster s Case was decided, that registration was per se notice in equity. The enactment as to notice made a complete change in the policy of the Registry laws, and compelled a party dealing with land to make himself acquainted with all instruments registered at the time of his becoming interested in the land ; and the law assumed that he had knowledge of them whether he actually saw them or not. To withold from the inspection of a person searching the books and instruments which relate to the title is inconsistent with the policy of the law which makes the contents of the books notice to him whether he sees them or not. If Webster's Case correctly states the law, " then all people would hold their estates at the mercy of a registrar who could give effect to deeds at his pleasure by giving false certificates of registry never made " («), or by inadvertence in overlooking registered (n) Per Robinson, C. J., in Doe d. McLean v. Monahan, 1 U. C. II. at p. 498. ■I RIGHT TO INSPECT BOOKS. instruments (o), or by misapprehension of their nature or effect. The policy of the registry laws has been from time to time to increase the facilities for acquiring information as to titles, and the enactment which required all instru- ments to be registered at full length has been followed by one extending the effect of registration and making it notice per se m all Courts. It is therefore submitted that Webster's Case does not express the law as declared by the present Act. ' . ■ The danger of mutilation of the books by the public, referred to in Webster's Case, if it ever was a valid reason for refusing inspection can no longer be so urged. The right undoubtedly exists to inspect all books other than the IndeXj and there is nothing to indicate that the Index is to be differently treated. The right also exists to inspect the original documents ; ?.nd if the danger of mutilation was ever contemplated by the legislature they at least would have been withheld or their inspection placed under stringent regulations ; for their loss would be irretrievable, while a mutilated book could be replaced or restored by copies from the original instruments. 7. The search. It is not unusual for solicitors to confine their search to the Abstract Index, satisfying themselves with the discovery of a continuous chain of title from name to name, and taking it for granted that every conveyance is a conveyance in fee simple. Nothing is more hazardous than such a practice, and the failure to peruse each instru- ment as registered amounts to nothing short of gross negligence. The Kegistrar is not bound to enter in the Index the operative words, the limitations of the estate, or the covenants, and without a knowledge of these matters the solicitor must necessarily be in almost entire ignorance of the title. (o) Harrison v. Brega, 20 U. C. K. 324. 70 REGISTRATION. In practice it will be found convenient wben searching the Abstract Index to make a note of the registered number of each instrument which appears to affect the title ; and when all the numbers have been noted to commence read- ing the instruments as copied in the books, striking otY each number as the instrument is read or rejected. When the instrument has been read there should be noted the following facts : — Date of instrument ; date of registration ; whether made in pursuance of any Act ; the recitals, if any ; the parties ; the consideration ; whether there is a receipt clause in the body of the deed (p) ; the operative words ; the words of limitation ; a description of the land ; the haben^ dum ; the release of dower, if any ; and a memorandum of the covenants. If there are any special covenants or stipulations in the deed they should be copied in full. Note then whether the deed has been executed by all proper jrarties ; and if it has been registered by memorial, whether the memorial has been executed by the grantor or the grantee. If the purchaser has been furnished with a solicitor's abstract these matters will appear upon it and it will be sufficient to examine and compare the entries in the books with the abstract. But if no abstract has been fur- nished full notes she uld be taken. If the instruments thus abstracted do not m^^ke a complete chain of title, the Index should be again examined and the search continued until all registered instruments have been found. • ■ * In examining old deeds executed by married women the certificates endorsed upon them should be carefully perused ; for the Act which was intended to validate them excepts conveyances with invalid certificates where the married woman or those claiming under her are in actual possession or enjoyment of the property (q), and a case recently arose in which the Act was held not to validate such a deed (r)^ (p) See E. S. O. cap. 109, sec. 1, sub-sec. 4. {q) R. S. O. cap. 127, sec. 14. (r) Elliott V. Broicn, 11 App. R. 228. NOTICE ; PRIORITIES. ' ' 71 The particulars of mechanics' liens, discharges of mort- gages, and other instruments which derive their operation from statutes should be carefully noted to see that they comply with the requirements of the statutes under whicli they operate. And wills should be carefully read with regard to the formalities attending execution in order to ascertain whether they comply in that respect with the law in force at the time of execution. And finally a search should be made in the alphabetical index to ascertain whether the parties whose names appear on the title have made any conveyances which may not have been entered in the abstract index. 8. Notice ; priorities. Under the old registry laws, it was held that construct- ive notice of a prior unregistered instrument capable of registration was not sufficient to postpone a subsequent registered conveyance even though there was possession under the prior instrument (s). That notice, which would have been sufficient in other cases to put the party acquir- . ing it on further enquiry was uniformly held not to be such notice as should prevail against the registered title (t). The subsequent purchaser might have actual knowledge that the prior claimant had some title, yet he was not affected if he was ignorant of the nature of his title (m). And under the present law, the notice which a subsequent registered purchaser for value must have in order that his title may be affected is actual notice, - \jress and direct, and not merely a knowledge of facts which may put him on further enquiry {v). . («) Soden v. Stevens, 1 Gr. 346 ; McCrnmm v. Crawford, 9 Gr. 337 ; Waten V. Shade, 2 Gr. 457. (0 Soden v. Stevens, 1 Gr. 348. (m) McCrumm v. Crawford, 9 Gr. 337. (r) Sherbonneau v. Jefs, 15 Gr. 574. 72 REGI8TRATI0N. Suspicion, or even constructive notice, or any notice less than actual notice will not avail as against the registered title (w). Possession is constructive notice only and not sufficient to postpone a subsequent registered instrument (x), even when the grantee is aware that some one other than his grantor is in possession (.?/). The Act in avoiding the prior unregistered deed avoids also the possession under it, and the grantor is in the event deemed to have been always in possession {z). The absence of an endorsed receipt upon a registered conveyance was held at most to be constructive notice of a vendor's lien for the unpaid purchase money and not suffi- cient to affect the registered title (a). And now the endorsed receipt may be altogether dispensed with, inasmuch as the usual acknowledgment in the body of a registered deed that the purchase money has been received is sufficient evidence of its payment until it is shown to be incor- rect [h). A conveyance by way of quit claim only is not sufficient to put a subsequent purchaser on enquiry as to the title of the person so conveying (c). A recital of an unregistered mortgage in a registered deed is constructive notice only of the mortgage to persons dealing subsequent- ly with the land (d). And a lis pendens (before the act permitting a certificate thereof to be registered) was con- structive notice only (e). When the party having the prior equity claimed under a (w) Cochrane v. Johnson, 14 Gr. 177. (x) Harty v. Appleby, 19 Gr. 205 ; Sherbonneau v. Jeffs, 15 Gr. 57-i ; Grey V. Ball, 23 Gr. 390. (y) Roe V. Braden, 24 Gr. 5'"'). {z) Waters v. SJuide, 2 Gr. s,- \. 464, (a) Baldwin v. Duignan, fS Gr. 598. (b) R. S. O. cap. 109, sec. 1, s-s. 4 ; and see 49 Vict. cap. 21 , sec. 10. {e) Graham v. Chalmers, 7 Gr. 597 ; 8 Gr. 239. {d) Foster v. Beall, 15 Gr. 244. (e) Ferrass v. McDonald, 5 Gr. 310. notice; priorities. 78 title incapable of registration, it was held, under the old law, that constructive notice was sufficient to save it as against a subsequent registered purchaser (/). A change in this respect, however, was made by the Act of 1865, and is continued in the present legislation. By the present Act, section 81, no equitable lien, charge or interest affecting land, is to be deemed valid against the registered title (g). Under this law actual notice of the prior equity is neces- sary in order to save it as against the registered title {h) ; and possession is constructive notice only(i). The evidence of notice must be express and direct, and not such notice only as arises out of circumstances or facts which should merely put the party on enquiry, and which in fact is constructive notice only (j). When a subsequent purchaser has notice of a prior un- registered deed he takes subject to whatever the deed contains, and is bound at his peril to ascertain its full scope and effect {k). So, where a subsequent purchaser was aware that his vendor had made a previous conveyance to some one unknown to him, it was held to be no defence for him to say that he had no correct information of who the true owner was {I). Registration is now per se notice to all persons claiming any interest in the land subsequent to the registration, and the Act which declares this is retrospective, and makes all registrations notice whether effected before or since the Act (m). It will be observed that registration affects with notice ( f) McCrumin v. Crawford, 9 Gr. 337 ; Grey v. Coiicher, 15 Gr. 419 3Ioore v. Bank of B. N. A., 15 Gr. 308. (g) Moore v. Baiik of B. N. A., 15 Gr- 308. (h) Wigle v. Setterington, 19 Gr. 512 ; Bell v. Walker, 20 Gr: 658. (/) Cooley V. Snii -i, 40 U. C. R. 543. (j) SJierbonneau v. Jeffs, 15 Gr. 574 ; Hollywood v. Waters, 6 Gr. 329. {k) Severn v. McLellan, 19 Gr. 220 ; and see Clark v. Bogart, 27 Gr , 450 Smith V. Bonnisteel, 13 Gr. at p. 34. (/) McLellan v. McDonald, 18 Gr. 502. (m) Vance v. Cumniings, 13 Gr. 25. 74 BEGISTRATION. only those dealing with the land subsequent to the registra- tion ; and it affects those only who are acquiring interests in the land, not those who are parting with them (n). And there- fore, where a mortgagee released a portion of the mortgaged premises to the detriment of one who had, subsequently to the mortgage, purchased a portion of the mortgaged lands, it was held that registration of the conveyance to the pur- chaser was not notice to the mortgagee of his position, and relying on that alone he could not obtain any relief against the mortgagee (o). Notice is effective if brought home to the purchaser at any time before registration of his con- veyance ip). Before the Act 31 Vict. cap. 9 (q), a voluntary deed, which was under the Statute of Elizabeth (r) "void, frus- trate, and of none effect " as against a subsequent pur- chaser for value, did not acquire validity from registration ; and a subsequent purchaser for value was preferred to the volunteer even though he had notice of the voluntary deed (s). But by this Act a voluntary conveyance executed in good faith, and registered before a binding contract or conveyance to a subsequent purchaser of the same lands, is not to be deemed void merely by reason of the want of consideration as against the subsequent purchaser or those claiming under him. But the Act does not protect a voluntary conveyance if made with intent to defraud (v). It will be noticed that the Act requires registration of the (n) T. & L. Co. V. Shaw, 16 Gr. 446. (o) Beck V. Moffatt, 17 Gr. 601 ; following T. dL. Co. v. Shaw\ 16 Gr. 446. {p) Millar v. Smith, 23 C. P. 47. But see Sanderson v. Burdett, 16 Gr. 119. (q) R. S. O. cap. 95, sec. 11. (r) 27 Eliz. cap. 4. (») Miller y. McGill, 24 U. C.R. 597 ; Buchanan v. Campbell, 14 Gr. 163. But a purchaser from the volunteer took a good title: Doe deni. Matlock Disher, 4 U. C. R. 14. (t) Richardson v. Armitage, 18 Gr. 512. NOTICE ; PRIORITIES. 75 voluntary conveyance before the execution, and not before the registration, of the subsequent conveyance for value. A party claiming unde/ a subsequent conveyance by reason of its prior registration must show that he is a purchaser for value {u). The consideration must be a valu- able one and not nominal (v). The production of the subsequent deed, stating on its face a valuable consideration was held not to be sufficient as against a stranger to the deed (w). The rights of competing purchasers are regulated by sections 74 and 80 of the Registry Act. By section 74, *' every instrument affecting the lands or any part thereof shall be adjudged fraudulent and void against any subse- quent purchaser or mortgagee for valuable consideration without actual notice, unless such instrument is registered in the manner herein directed before the registering of the instrument under which subsequent purchaser or mort- gagee claims ;" and by section 80, "priority of registration shall prevail, unless before such prior registration there has been actual notice of the prior instrument by the party claiming under the prior registration." The policy of the Act being to protect purchasers against secret or concealed conveyances, the person claiming under any conveyance must register it under the penalty of being charged by a subsequent purchaser with collusion with his grantor, or carelessness or neglect in himself (a:). And the operation of the statute is to make the prior deed, as against the subsequent purchaser, fraudulent and void, and so to deprive the prior grantee of his estate in so far as it is (u) Doe dem. Russell v. Hodgkics, 5 U. C. R. 348 ; Leech v. Leech, 24 U. C. R. 321. {v) Doe dem. Major v. Reynolds, 2 U. C. R. 311. (w) Doe dem. Cronk v. Smith, 7 U. C. R. 37G. See R. S. O. cap. 109, sec. 1, s-s. 4 ; 49 Vict. cap. 20, sec. 10. (x) Waters v. Shade, 2 Gr. 482, 483, citing Warburton v. Loveland, 2 Dow & CI. 480. 76 REGISTRATION. necessary to give full effect to the second conveyance. At common law, after a conveyance in fee simple the grantor has no estate left in him, and a subsequent deed is therefore absolutely void and conveys nothing. But by the operation of the Eegistry Act the second deed, which was wholly void as a conveyance before registration, becomes by registration a good conveyance, and the first deed is (as regards the second one) deemed fraudulent and void (y). In Doe dcm. Major v. Reynolds {z), Robinson, C. J., said, " I consider the effect of the Registry Act to be, that the deed which is defeated by its provisions, is not merely to be looked upon as fraudulent and void after the registry of the subsequent conveyance, having been good and valid before ; but that it must be taken to have been fraudulent and void from the beginning, as a conveyance intended to be kept secret, to deceive purchasers, and that no estate ever jmssed by it." That the principle of the Act is to treat the unregistered conveyance as fraudulent ah initio is true enough ; but that this is its operation or effect is not so clear. The first conveyance is beyond all question good at common law from the time of its deliver}^, and conveys the legal estate ; and under it the grantee could maintain an action for the land against any one but a subsequent registered purchaser. The fee is (as the learned Judge shows immediately after the passage quoted), in the first grantee until registration of the second conveyance. Unt'l that event the second conveyance is inoperative, because the fee is in the first purchaser. It is the registration of the second conveyance that gives it validity, avoids the prior deed, deprives the first purchaser of his estate, and vests it in the second grantee to the extent necessary to give full effect to his conveyance. It is therefore, perhans more correct to say that the operation of the Act is, that (y) Bruyere v. Knox, 8 C. P. 522, 523 ; Waters v. SJuide, 2 Gr. 458. (z) 2 U. C. R. at p. 318. NOTICE ; PRIORITIES. 77 upon registration of the subsequent conveyance, tbe legal estate shifts from the prior to the subsequent grantee, to an extent sufficient to serve the second conveyance. The Act does not avoid altogether the first conveyance, but makes it void only as against the subsequent purchaser or mortgagee. Therefore, where the second conveyance purports to convey a less estate than the prior deed, the latter is avoided only in so far as it is necessary to give fall effect to the subsequent conveyance. Thus, a tenant for life claiming by prior registration of a conveyance made after a conveyance in fee, would be amply protected by holding the prior conveyance in fee to be a valid conveyance of the reversion expectant on his estate. So, as between a prior purchaser and a subsequent mortgagee in fee (claiming by prior registration), the latter would be subject to redemp- tion by the former ; and to that extent only would the pur- chaser's deed be void. And as between two mortgages in fee, it is possible to rank them so as to give full effect to each mortgage as a charge upon tbe land ; but as between them- selves the prior mortgage is postponed to the second one as being, in its character of a first mortgage, fraudulent and void as against the second. To the case put by Mr. Justice Armour in Weir v. Niagara Grape Co. (a), the answer is obvious. His Lordship puts the case thus, that as between competing mortgagees, the second mortgagee who registers first could not maintain an action to vacate the subsequent registration of the first mortgage, on account of its being fraudulent and void as against him. Plainly not. But, in its character of first mortgage, the prior instrument is fraudulent and void as against him, and to that extent the second mortgagee is urdoabtedly entitled to relief, and to the consequent declara\ion of priority. But as against a subsequent conveyance in fee which gains priority by regis- tration, any prior unregistered conveyance must from the (a) 11 Ont. R. at p. 716. 78 REGISTRATION. nature of the case be wholly void ; for it is impossible that any estate in or charge upon the land, could exist after an unincumbered estate in fee simple. As between parties claiming under competing convey- ances the doctrine of estoppel has no place ; their rights under the Registry Act are purely statutory {b), (6) Doe dem. Major \. Reynolds, 2 U. C. R. at p. 316. VERIFICATION OF THE ABSTRACT, 79 CHAPTER V. VKRIFICATION OF THE ABSTRACT : PUIMARY EVIDENCE. 1. Production of deeds. (i) Mortgaged lands, 2. Records, (i) Memorials. (ii) Deeds registered at full length. (iii) Gertijied copies. 3. Execution of deeds. 4. Execution by attorney. 5. Recitals, etc., 20 years old. 6. Miscellaneous. When a good title has been shown by the abstract, it is the duty of the vendor in the absence of stipulation to the contrary to prove the various statements and matters con- tained in it. This is called verifying the abstract, and is done by the production of deeds, declarations and other evidence. In admitting evidence conveyancers are more lax than Courts, though in weighing its sufficiency they are more strict (c). If evidence is admissible in an action, it is a /ortiori admissible as between vendor and purchaser {d)\ but a great deal of evidence is admissible in conveyancing matters which could not be used in an action ; and it is there- fore quite possible that a purchaser might be compelled to (c) Re Higgins, 19 Gr. at p. 310. (d) Lee Abst. 267. 80 VEUIFICATION OF THE ABSTRACT. complete a contract upon evidence which would not enahle him to recover the estate in an adverse action ugainst a hostile party in possession (e). 1. Production of deeds. The vendor is bound to produce the deeds although they are not in his possession and though the purchaser may not be entitled to them on completion (/) ; and a failure to do so or to account sati'?factorily for their non-production and give secondary evidence of them entitles the parchaser to be relieved of the contract (.7). In order to deprive the purchaser of his right to the production of the deeds the most clear and unambiguous condition is necessary. In Southhy V. Hutt {h) the purchaser bought under the follow- ing condition : — " The vendor will deliver up . . all the title deeds and copies of deeds and other documents in his custody, but shall not be bound or required to produce any original deeds or other documents than those in his posses- sion and set forth in the abstract, etc." It was argued that the word "produce "had a more general meaning than *' deliver," and that it was intended to apply to production for the purpose of proving the abstract and not to produc- tion only for the purpose of delivery. But it was held that the purchaser was not bound to complete his contract until a good title had been proved, either by the production of the deeds professed to be abstracted, or by such other evidence as would satisfactorily prove the statements in the abstract to be correct. It does not follow that the vendor cannot prove his title because he has not in his possession all the deeds necessary for that purpose. If the vendor has not the deeds in his possession but (e) Lee Abst. 23. (/) Sug. 429. (g) Bryant v. Bu^k, 4 Rus. 1 ; Berry v. Young, 2 Esp. 640 n. Material charges in this respect have been made by the Vendor and Purchaser Act which will be presently noticed. [h) 2 M. & Cr. 207. MORTGAGED LANDS. 81 has a covenant to produce them, he must obtain produc- tion for the purchaser ; for the bolder of the deeds might refuse to show them to the purchaser applying alone (i). (i) Mortgaged lands. Where the deeds are in the hands of a mortgagee, if the mortgage was made before The Conveyancing and Law of Property Act, 1886 (J), the mortgagee cannot be compelled (unless he has bound himself in some way by consent) to allow them to be inspected, though an assignee of the equity of redemption offers to pay the interest if shown the mortgage deed {k), or even if he is asked for them for the purpose of paying him off in full (l) ; nor will he be compelled to exhibit the mortgage deed for the purpose of showing what land is comprised in it (m). The general rule is that the mortgagee must be paid off before he can be compelled to show the deeds («). In Patch v. If'ard (o) it was said that the rule does not extend to the mortgage deed itself, but this case has not been followed [p). But by the Act of 1886, section 8, a mortgagor, whose mort- gage has been created since the Act, as long as his right to redeem subsists, is entitled from time to time, at reason- able times on his request and at his own cost and on payment of the mortgagee's costs to inspect and make copies of the title deeds in the custody or power of the mortgagee. (i) Sug. 431. (j) 49 Vict. cap. 20. (/i) Broionev. Lockhart, 10 Sim. 421. [l) Darner v. Lord Portarlington, 15 Sim. 380. (m) Addison v. Walker, 4 Y. & C. 442. (n) Howard v. Robinson, 4 Drew, at p. 525 ; Browne v. Lockhart, 10 Sim. at p. 425 ; Cannock v. Jauncey, 1 Drew. 507. (o) L. R. 1 Eq. 440. (p) See Chichester v. Lord Donegall, L. R. 5 Chy. App. 502; Bell v. Chamberlen, 3 Ch. Ch. 429. But see West of England, etc. Bank v. Nickolls, L. R. 6 Ch. D. 613 , Phillips v. Evans, 2 Y. & C. C. C. 647. A. T. — 6. 82 VERIFICATION OF THE ABSTRACT. 2. Records. If the vendor cannot produce the original instruments, as in the case of wills and records, he cannot require the purchaser to send to the various offices to examine the records and compare the abstract with them, even though he is wilUng to pay the expense of the attendances ; but he must procure office copies or extracts, as the case may require, in order to enable the purchaser's solicitor to examine the abstract with them, and if necessary to lay them before counsel (^). In Lee on Abstracts, it is said that "the instruments to which the exception applies, being records or in the nature of records, are lines and recoveries, proceedings in Courts of Law or Equity, or other Oourts of record, enrolments of deeds and other documents, probates of wills, and letters of administration, and per- liaps copies of court rolls and some other public docu- ments " (r). Lord St. Leonards states that the rule seems to extend to instruments not strictly of record, as deeds enrolled for safe custody in a court of record, or wills regis- tered and accessible, which latter though not in a court of record yet in common parlance are treated as on record (s). But Mr. Dart says that the practice in this respect is not set- tled (0. The true distinction is said by Lord St. Leonards to b3 between what is in private custody and what is of public access (ii). Deeds enrolled under a statute which requires enrolment are records (r). And so, a registered statutory discharge of mortgage which derives its opera- tion solely from registration is probably a record as the term is understood by conveyancers. And as to all such {q) Sug. 431 ; Dart V. & P. 408. (r) Lee Abs. 373. And see Gov. Con. Ev. 121. (s) Sug. 448. {t) Dart V. &. P. 677. See also 9 Jarm. Conv. by S. 10. (u) Sug. 448. And see Moulton v. Edmonds, 2 D. F. & J. at p. 249. (r) Cooper v. Emery, 1 Ph. 388; Campbell v. Campbell, Qng. 449. MEMORIALS. 83 the vendor verifies the abstract by producing certified copies (zv), (i) Memorials. Before the Vendor and Purchaser xA.ct (r) it was held that memorials of registered deeds were not records, and there- fore that the deeds must be produced or attested copies fur- nished to the purchaser (/y). The memorials themselves were at best but secondary evidence of the deeds. Since the passing of the Vendor and Purchaser Act if the deeds are in the possession or power of the vendor they must be produced or attested copies furnished. But if not in his ]>ossession or power the registered memorials of all dis- charged mortgages, and registered memorials twenty years old (z) of other instruments are made primary evidence (a) of the deeds to which they relate (i) where they are exe- cuted by the grantor, (ii) in other cases, when possession has been consistent with the registered title. It is the duty of the Registrar to give certified copies of all regis- tered instruments (/;). Some confusion is occasioned by section 46 of the Evidence Act as to whether certified copies are admissible in evidence at all except under the con- ditions mentioned in that section. They are of course the only evidence of registered memorials which a vendor can produce if the purchaser insists that he is not bound to verify the abstract himself by comparing it with the originals in the Registry office ; and on that account they must necessarily be admitted to verify the abstract. (ic) Cooper V. Emery, 1 Ph. 390 ; and see Leighton v. Leighton, 1 Str. 210. {x) R. S. O. cap. 109. iy) Re Charles, 4 Ch. Ch. 19. {z) As the law respecting registration at full length came into force on 1st January, 1866, nearly all memorials are now twenty years old. (a) Van Velsor v. Hughson, 9 App. R. 401. [h) R. S. O. cap. Ill, sec. 23, ad tin. See Appleton v. Lord Brayhrook, 6 31. & S. 38 ; Doe d. Wheeler v. Jila^WiUiams, 2 U. C. R. at p. 80. ' 84 VERIFICATION OF THE ABSTRACT, Copies certified by the Registrar are sufficient without proof of the execution of the originals (r). Before the Vendor and Purchaser Act mere length of possession and dealing with the property was hardly con- sidered to be sufficient when taken with a memorial signed by the grantee as evidence of a conveyance in fee simple. For various cases might arise in which a party having a less estate than a fee simple might make a memorial as of a grant to him in fee, register it, destroy the deeds and convey in fee {d). Possession might go with the title thus, registered for a great many years, and the rights of those in remainder would not arise until the death of the person entitled to the prior estate, or, if they were then under dis- ability, until a later date [e). Bearing this in mind, the words of the Act, " if possession has been consistent with the registered title," ought not to receive too liberal an interpretation in favour of the vendor. It is submitted that it would not be sufficient to show merely that possession had gone with the registered title of the grantee who regis- tered the memorial. And even if it were shown that possession continued to be consistent with the registered title from the time of registering the memorial signed by the grantee it is possible that a case of the kind above mentioned might arise. The memorials are presumed to contain all the material contents of the instruments to which they relate (/). In some cases the memorials contain a copy of the deed at length. But they were required by law only to show the date of the instrument, the names and additions of the parties, the names and additions of the witnesses, and their places of abode, and the lands as described in the instrii- (c) Marvin v. Hales, 6 C. P. 211 ; Lynch v. O'Hara, 6 C. P. 267 ; Doe d. Pnnce v. Girty, 9 U. C. R. 41. (d) A life tenant would be entitled to the custody of the deeds. (e) Leith R. P. Stat. 441. (/) R. S. O. cap. 109, sec. 1, sal-sec. 3. :.; r MEMORIALS. 85 ment (g) ; and a memorial drawn according to the require- ments of the Act solely wo ild not show the limitations of the estate, the covenants, provisoes, or any special matters agreed to between the parties. It is possible therefore that the Act may make them negative evidence of the non-exist- ence in the instrument of what they do not contain them- selves. (ii) Deeds registered at full length. Where an instrument in one part only has been regis- tered at full length under the present law it is the only original evidence of itself extant, and being in the custody of the Eegistrar, it may be proved by a certified copy on the same principle as may c. registered memorial of a lost deed. Where an instrument has been made in duplicate and has been registered at full length under the present law it is questionable whether that part which remains with the Registrar is to be regarded as a record so as to entitle the vendor to verify the abstract by means of a certified copy without accounting for the non-production of the duplicate original which should be in his possession or power. It is submitted that it is not. If the duplicate original is in the vendor's possession or po-ver the purchaser has an unques- tionable right to its production, for he is not bound to accept any evidence but the best that the vendor can give him. This is a different case from that of an instrument in one part only of which there is no original extant but itself, and that being in the custody of a public officer, the vendor is never able to put into the hands of the purchaser for the purposes of the abstract any better evidence than a certified copy (/i). In the case of a registered deed in duplicate that part which is or should be in the possession of the vendor is as good evidence as th'it which remains with the Regis- {g) C. S. U. C. cap. 89, sec. 19. {h) See Leighton v. Leighton, 1 Str. 210. 86 VERIFICATION OF THE ABSTRACT. trar ; it is, or should be, possible therefore for the vendor to give better evidence than a certified copy, and if the original cannot be produced by the vendor its absence should be accounted for before a certified copy is admitted. The fact that the duplicate original in the custody of the Kegistrar is as good evidence as that part which the vendor should have does not aid him ; for, as we have seen, the purchaser is not bound to visit the public oifices for the purpose of verifying the abstract (?). (iii) Certijied copies. The provisions of the Eegistry and Evidence Acts relating to certified copies, however, must not be overlooked, and it may be that certified copies are primary evidence of the deeds and as such admissible in evidence without, accounting for the originals. By the Eegistry Act {j) a copy of a registered instrument certified by the Kegistrar is to be received as prima facie evidence of the original " in the same manner and with the same effect as if the original thereof was produced." If this enactment stood alone the certified copies of deeds would be primary evidence of the deeds, and would be admitted to verify the abstract without any account being given of the original deeds. What is admis- sible in an action is a fortiori admissible between vendor and purchaser (/c). But by section 46 of the Evidence Act it is enacted that '* in any action at law or suit in Equity, where, but for this Act or the Registry Act it would be neces- sary to produce and prove any original instrument which has been registered in order to establish such instrument and the contents thereof the party intending to prove any such original inst- ument may give notice to the opposite party ten days at least before the trial, or other proceeding (i) And see Ikirr v. Doan, 45 U. C. F. 498, where it is said that as against the vendor there is no legal obligation to search the register at all. {j) R. S. O. cap. Ill, sec. 24 ; see also R. S. O. cap. 62, sec. 45. {k) Lee Abs. 267. ■( CERTIFIED COPIES. 87 in which the said proof is intended to be adduced, that he intends at the said trial or other proceeding to give in evi- dence as proof of such original instrument a copy thereof certified by the Registrar under his hand and seal of office, and in every such case the copy so certified shall be suffi- cient evidence of the original instrument, and of its validity and contents, unless the party receiving such notice within four days after such receipt gives notice that he disputes tlie validity of such original instrument in which case the costs of prcducing and proving such original may be ordered by the Court or Judge to be paid by any or either of the parties as may be deemed right." The following para- phrase is ventured as showing the true construction of this section : — " In every action where it would be necessary to produce and prove any original instrument, if the Registry Act did not allow a certified copy to be used, such certified copy shall be sufficient evidence of the original instrument if the party intending to prove such original instrument gives notice, etc., and if no notice disputing the validity etc. is given by the opposite party." That is to say, in all cases where certified copies may be used in lieu of the originals they shall be evidence only when the required notice is given and the validity of the originals is undisputed. This con- struction takes away the absolute effect of the Registry Act, and makes the certified copies primary evidence of the deeds only at the option of the partj^ against whom the proof is to be given. The Registry Act makes the copies evidence ; the Evidence Act prescribes the conditions upon which they shall be admitted. Yet it is submitted with great diffidence that no other construction .'^ possible that does not do violence to the words of the Act. It is not impro- bable that this legislation may not be applicable to convey- ancing matters. Though it is necessary to produce, it is not necessary to prove the original deeds in conveyancing matters ; the purchaser on their production, if there is nothing suspicious about them, never disputes their validity 88 VERIFICATION OF THE ALSTRACT. bus accepts them as genuine (l). It may also well be argued that the purchaser is entitled to know at a much earlier stage than it may happen under this clause, v/hether he is going to get production of the original deeds or is to be satisfied with copies only. If then this clause is not applicable, or if being applicabl ^ the purchaser gives a counter notice disputing the validity of the original deeds, the vendor will not be able to use certified copies as primary evidence of the deeds, but must prove his title apart from the Act and lay a proper foundation for admitting copies. In that view the certified copies would be good secondary evidence of the deeds (wi). This perplexing state of the law should be remedied by an enactment similar to that in the Vendor and Purchaser Act, whereby certified copies of deeds registered in full should be admissible where the originals are not in the possession or power of the vendor. 3. Execution of deeds. The purchaser cannot compel the vendor to prove the execution of deeds produced — unless there is some special reason for it (n). As a general rule apart from the Registry Act if the deeds purport on their face to be properly execu- ted, free from erasures and other suspicious circumstances, the conveyancer takes for granted that the signatures are genuine. But where deeds are registered at full length under the present law the certificate of registration is evi- dence of the due execution as well as of the registration (o). The certificate is prima facie evidence only (p), and it is open to the party against whom it is used to disprove the (I) See the next section. - . (m) R. S. O. cap. Ill, sec. 23 ad. Jin. ; see Appleton v. Lord Braybrook, 6 M. & S. 38. (n) Brady v. Walls, 17 Gr. 699 ; Thomson v. Miles, 1 Esp. 184 ; Sug. 438. (o) R. S. O. cap. Ill, sec. 5G ; Can. Perm. L. d- S. Co. v. Page, 30 C. P. 1- (p) Doe d. McLean v. Manalian, 1 U. C. R. 491. EXECUTION BY ATTORNEY. 89 registration or the execution. Deeds thirty years old prove themselves on production from the proper custody {q). 4. Execution by attorney. Where a deed is executed by an attorney, if it is thirty years old, its production proves only that it was executed as on its face it appears, by the attorney asserting himself to be the attorney of the party. It does not establish that he was the attorney properly appointed (r). That should be proved by the production of the power of attorney or by other evidence if it cannot be produced. Where a deed executed by attorney has been registered at length under the present law the certificate of registration, it is submit- ted, goes no further than to prove that it has been executed as it purports to have been, viz., by an attorney. The power of attorney may be proved by registration (s). A power of attorney given for valuable consideration is irrevocable except by the death of the constituent (t) ; but where there is no valuable consideration, the power may be revoked at any time. By the Act 29 Vict. cap. 28, sec. 23 (it), if a power of attorney provides that the same may be exercised in the name and on behalf of the heirs or devisees, executors or administrators of the person executing the same, or provides that it shall not be revoked by the death of the donor, such provision shall be effectual. If there is no such provision in a power of attorney every payment made and act done under the power after the death of the constituent or after some act done by him to avoid the power is valid as respects every person party to such pay- ment or act to whom the fact of the death or of the doing of such act was not known at the time thereof, and as re- (q) Gov. Con. Ev. 4. (r) Jones v. McMuUen, 25 U. C. E. 542. But see Gov. Gon. Ev. 37. (s) R. S. O. cap. Ill, sees. 2, 55, 56. (0 Smart v. Sanders, 5 C. B. 917 N ; 3 J. & L. 603, 613. (u) R. S. O. cap. 95, sec. 14. 90 VERIFICATION OF THE ABSTRACT. spects all claiming under them ; the act or payment must have been done or made in good faith [v). If the power was given for valuable consideration in cases without the Act, proof should be given that the constituent was alive at the time of the exercise of the power (w) ; in cases within the Act, that the donor was alive, or that the act done under the power was done in ignorance of the death of the con- stituent, unless it is provided by the power that it may be exercised after the death of the constituent. If the power was without consideration, enquiry should be made w^hether it was revoked prior to its exercise (x) ; and in cases with- in the Act, whether the act done under it was done in igno- rance of the death of the constituent or of any act done by him to avoid it, unless it is exercisable after death (y). • 5. Recitals, etc., 30 years old. Kecitals, statements and descriptions of facts, matters and parties contained in deeds, instruments. Acts of Par- liament or statutory declarations tw^enty years old at the date of the contract are, unless and except so far as they are proved to be inaccurate, to be taken to be sufficient evidence of the truth of such facts, matters and descrip- tions (z). In Bolton v. London School Board {a) it was held that a recital in a deed twenty years old that the grantor was seised in fee simple was not a recital of a con- clusion of law but a recital of a fact or matter within the meaning of the statute, and that the vendor need not prove, or even abstract, the antecedent title (6). The manner in which conditiorjs of sale of a like character (y) E. S. O. cap. 95, sec. 15, (id) Dart V. & P. 311. {x) Darfc V. & P. 311. {y) For remarks upon this legislation see Watters R. P. Stat. p. 303. {z) R. S. O. cap. 109, sec. 1, sub-sec. 1. (a) L. R. 7 Ch. D. 776. {h) Reasons for doubting the soundness of this decision have been given, ante p. 33. ■ . RECITALS 20 TEARS OLD. 91 have been construed may furnish a key to tho construction ol this enactment. With respect to conditions making recitals conclusive evidence of the facts and matters recited, it has been doubted (bearing in mind that conditions must be in the most clear and unambiguous language to bind a purchaser) whether they would bind the purchaser to accept as conclusive evidence a recital of a conclusion of law though of the required age, if the facts upon which the conclusion is based were not recited. Thus, a state- ment of a pedigree is necessary in order to enable one to draw a proper conclusion as to heirship. Apart from the statute and in the absence of any condition respecting it, if a vendor attempted to prove an heirship by a solemn declaration that A. B. was heir at law of C. B., the proof would not be accepted under any circumstances. The pedigree would have to be proved step by step in order to enable the purchaser to judge for himself whether the vendor's conclusion was correct. And if a recital in the same words were offered in evidence under a general con- dition that all recitals should be evidence of the facts and matters recited it should not have any more potent effect than the same words would have in another form of testi- mony. '' The proper construction of a condition making recitals evidence of the facts and matters recited would seem to be, that the recitals must state every fact and matter which, in the absence of such a condition, counsel advising on the title would require to be stated on the abstract and to be proved in order to enable him to draw the required conclusion " (c). It is submitted that the Act should be construed in the same way. It merely creates a new species of testimony, and makes that evidence which before was inadmissible ; but it does not create a species of testimony of so high a character that it is un- necessary to show the manner in which conclusions are arrived at. If the recitals are such that, if they were (c) 9 Jarm. by S. 4. , \^\ -■ r: -:./:-: 'i' /[^Air:,-. 'j^ .:-^:^ 92 VERIFICATION OF THE ABSTRACT. statements contained in statutory declarations they would be sufficient proof of the facts required by the abstract to be proved, they are evidence whi^h is binding on the pur- chaser. If they j). Declarations and affidavits should slate the means of knowledge of the declarants and deponents to the facts l«roved (c), and should if possible be made by disinterested persons {d). It is sometimes necessary for the vendor to produce documents as negative evidence. For instance, a person claiming as heir-at-law as against a will said to be in- valid {e), or by reason of the land in question not being affected by the will, must produce it (/). iy) Per Blake, V.C., Re Hudson & Simpson, 23rd December, 1876. (z) 37 Vict. cap. 37 (D). (n) So ruled by Patterson, J. A., liegina v. Monk, Whitby Assizes, 19th October, 1876. {h) lie BouHtead & Warwick, Proudfoot, J., 21st September, 1886; Scott V. Nixon, 3 Dr. & War. at p. 402. (c) Be Harding, '6 Ch. Ch, 233. (d) Hohson V. Bell, 2 Beav. 17. (e) Stevens v. Guppy, 2 S. & St. 439. (/) Hayes Conv. 4th Ed. 444. " ' ^ 96 VERIFICATION OF THE ABSTRACT. CHAPTER VI VERIFICATION OF THE ABSTRACT ! SECONDARY E\1DENCE AND PRESUMPTIONS. 1. Secondary evidence. (i) Loss or destruction of deeds. (ii) Search. (iii) Memorials. (iv) Certified copies. (v) Recitals. 2. Presumptions. (i) Things rightly done — Deeds. (ii) Identity of persons. (iii) Officials and official acts. (iv) Life, death and survivorship. (v) Women past child-bearing. (vi) Legitimacy and marriage. (vii) Satisfaction of mortgages. (viii) Miscellaneous. € 1. Secondary evidence. We have seen that where the vendor has not the deeds in his possession or power, the registered memorials of those which have been so registered are primary evidence of the deeds if signed by the grantor, or in other cases if possession has been consistent with the registered title. But where possession has not been consistent with the registered title and the memorials are not signed by the grantors, the original ideeds must be produced or their LOSS OR DESTRUCTION OF DEEDS, 97 absence accounted for and secondary evidence given. Where deeds have been registered at full length we have also seen that secondary evidence may have to be given. (i) Loss or destruction of deeds. To thii admission of secondary evidence proof of the loss or destruction of the original document is a necessary pre- liminary. Proof of the destruction more readily lets in the secondary evidence of a copy than proof of the loss, which must ever be incomplete and exceptionable (r/). Before the secondary evidence can be received, the same evidence of their loss and contents must be given as at a trial. The first step is to show tliat such a deed once existed (/i). The next is to show in whose custody it was last seen or known to be, if that can be done ; or to show who was the person entitled to the custody, an J that being discovered, to make search there ; and if it cannot be found on diligent search then secondary evidence may be given (i). (ii) Search. The degree of diligence to be used in seeking for an original document, before a party can give secondary evi- dence of its contents, must depend, in a great measure, upon the circumstances of each particular case. If a paper be of considerable value, or if there be reason to suspect that the party not producing it has a strong interest which would induce him to withhold it, a very strict examination would properly be required ; but if a paper has been aban- doned or treated as useless, so as to increase the proba- bility of its loss or destruction, or if the party could not (g) Gov. Con. Ev. 312. (/<) Doe d. Padwick v. Whitcomb, 6 Ex. at p. 606; 4 H. L. Co. 431; Re Bell, 3 Ch. Ch. 241; Ansleij v. Breo, 14 C. P. 371. (j) Gordon v. McPhail, 31 U. C. R. 484 ; Re Bell, 3 Ch. Ch. 241. A. T. — 7. 98 VERIFICATION OF THE ABSTRACT. have any interest in keeping it back, or if the facts raise a probability of its destruction (j) a much less strict search would be necessary to let in secondary evidence of its con- tents (k). The point to guard against in this respect 's a pledge or deposit of the original instrument (/). It must be remarked, however, that under our system of registration a deposit of title deeds gives but a slight security and is in consequence rarely met with ; and even if such a deposit had actually been made and a purchaser took and registered without actual notice he would be pro- tected. Indeed the purchaser may, if he choose, rely upon the registered title alone, and is not bound to call for the production of the deeds (m). Much less evidence of a search may therefore be sufficient to let in secondary evidence than in a similar case under English law. Parties searching for a missing deed should remember that the person entitled to the first immediate legal estate of freehold is entitled to retain the title deeds as against those entitled in remainder or reversion, and the deeds are presumed to follow the title and go into the custody of those entitled (??). The presumption that the deeds follow the title may be destroyed, as, for instance, by the fact that they covered other lands retained by the vendor, or that some prior owner on sale of a portion gave a covenant to produce them (o). When lands descend to real representatives, they and not the personal representatives, are entitled to the deeds, though for greater certainty a search with the latter would be advisable, especially in the case of a missing mortgage {})). (j) Ferguson y. Freeman, 27 Gr. 211. (k) Gov. Con. Ev. 312 ; Bratt v. Lee, 7 C. P. 283. (Z) Gov. Gon. Ev. 313. (m) Agra Bank\. Barry, L.R. 7 H. L. 135. (n) Leith R. P. Stat. 427 ; Webb v. Lymington, 1 Eden 8; Carrier v. Han- nyngton, 22 Beav. 444. And see Tay. Ev. sees. 402 et seq. (o) Leith R. P. Stat. 427, 428. (p) Leith R. P. Stat. 427. SEARCH. 99 Trust estates descend to the eldest son, being excepted from the operation of the Real Estate Succession Act (q). Upon the death of a bare trustee of any corporeal or incorporeal hereditaments of which he was seised in fee, such hereditaments shall vest in the legal personal repre- sentative, from time to time, of such trustee (r). Where any person has entered into a contract in writing for the sale and conveyance of real estate, and has died intestate or without providing by will for the conveyance of the land, then if the deceased would have been liable to execute a conveyance the executor, administrator, or administrator with the will annexed shall make the conveyance (s). And in some other cases {t) the personal representative may sell and convey. By The Devolution of Estates Act, 1886, the real property of any one dying on or after the first of July, 1886, devolves upon the legal personal representa- tives from time to time {u). In all such cases search for deeds should be made with the personal representatives. Where the document, if in existence, should be in the possession of the party who desires to give secondary evidence of its contents, the proper course is that he should search with a witness, and that the search should be so conducted, and in such places, as to afford reasonable ground for concluding that it was made bona fide, both as regards the witness and the party, by giving and using all possible facilities to make it effectual {v). It is not sufficient for the vendor to search alone or to give only his own evi- dence of loss [w). Each case must depend upon its own circumstances, but the party is expected to show that he has {q) R. S. O. cap. 105, sec. 40. (r) R. S. O. cap. 107, sec. 5. The section does not apply expressly to intestacies only. (s) R. S. 0. cap. 107, sec. 25. (/) R. S. 0. 107, sees. 15 to 27. (w) 49 Vict. cap. 22, sees. 4, 9. {v) Bratt V. Lee, 7 C. P. 280 ; Leith R. P. Stat. 428,429. \w) Re Chamberlain, 2 Ch. Ch. 352. 100 VERIFICAnON OF THE ABSTRACT. in good faith exhausted in a reasonable degree all the sources of information and means of discovery which the nature of the Cu-sc would naturally suggest, and which were accessible to him (.^). The search need not have been a recent one, 01 made for the purposes of the matter in question, though the latter course would be more satisfactory {y). • * (iii) Memorials. Where sufficient evidence has been given of destruction of the original document, or of search and loss, to let in secondary evidence, memorials were, before the Vendor and Purchaser Act, a frequent means of furnishing such evi- dence. The subject is very fully and ably treated of by Mr. Leith in his work on the Keal Property Statutes {z). His conclusions may be stated as follows : — 1. Where the- memorial is signed by the grantor, it was evidence against him and all persons claiming under him. If he was in possession and the execution of the memorial was against his interest, it was probably evidence against third persons. If he was not in possession and it was not against hia interest, it was only a link in a chain of circumstances, which, when taken with those circumstances, might prove the existence of a deed 2. Where the memorial was executed by the grantee it was undoubtedly secondary, if not primary, evidence against him and all persons claiming under him. 3. If executed by the grantee and not against his interest it was merely a link in the chain of circumstances which taken altogether might establish the existence of a. deed. The Vendor and Purchaser Act makes memorials twenty years old signed by the grantor primary evidence of the deeds to which they relate if the original deeds are not in the possession or power of the vendor* {x) Tay. Ev. sec. 399. iy) Tay. Ev. sec. 405. [z) P. 427. MEMORIALS. 101 If signed by the grantee and possession has been consis- tent with the registered title they are also primary evi- dence (a). It is only when the memorials are signed by the grantee and possession has not been consistent with the registered title that they will be resorted to as secondary evidence. If they are against the interest of the party executing them they are, as Mr. Leith says, undoubtedly secondary, if not primary, evidence against all persons claiming under the party executing. Otherwise, they are of no value standing alone, but may be of assistance, when taken with other circumstances, in establishing the exist- ence of a deed. (iv) Certified copies Secondary evidence of deeds is usually given by pro- ducing copies certified by the Kegistrar where they have been registered at length. The copies should be made from the original deeds, and so certified, and not from the copy entered in the book which is only a copy of the original (6). And with respect to copies generally, it is to be observed that a copy of a copy is not evidence, for the best evidence which the nature of the thing admits is always required ; and the further off anything lies from the original truth, the weaker must be the evidence ; and indeed there would l)e a break in the chain if a copy of a copy were given in evidence, for it would not appear that the first was a true copy. Where memorials are admissible as secondary evidence, copies certified by the Kegistrar may be used without proof of the execution of the originals (c). But in proving the execution of the deeds to which they relate the statements (a) R. S. O. cap. 109, sec. 1, sub-sec. 3 ; VanveUor v. Hughson, 9 App. R. 390, 401. See Leith R. P. Stat. 433 et seq. as to when the evidence of possession is sufficient ; and ante p. 84. (b) Pnncev. McLean, 17 U. C. R. 463. (c) Marvin v. Hales, 6 C. P. 211 ; Lynch v. O'Hara, 6 C. P. 267 ; Doe d. Prince v. Girty, 9 U. C. R. 41. 102 VERIFICATION OF THE ABSTRACT. in the affidavits attached to the memorials to the effect that the deeds were duly executed may be used as evidence of the execution of the deeds, if they are twenty years old {d). An abstract which has been made up from the deeds themselves, or which has been examined with the deeds, and can be shown to correctly state their contents may be used as secondary evidence of the contents, though the execution may have to be proved by other means (e). (v) Recitals. As a general rule the recitals in a deed are evidence only between parties and privies (/). And they are evidence only of what is actually recited (g). They are always taken as admissions of those who are parties to the deed and in- terested in the property. Thus, where a recital occurred in a deed of settlement that the owner of the property had given a bond to another party which bond was not pro- duced and the execution could not be proved, the recital was held to be evidence of the execution of the bond (h). But though a recital may be evidence as against parties executing the deed containing the recital of a prior instru- ment, yet there ought to be some further proof to establish entirely the execution and validity of the recited deed (i). But where there are other facts, such as entries in a solici- tor's books of charges for procuring the execution of the deed, which corroborate the recitals, or where there is other evidence that the instrument recited did exist, then the {d) R. S. O. cap. 109, sec. 1, sub-sec. 1. {e) Bryant v. Bwk, 4 Buss, at p. 4 ; Moulton v. Edmonds, 1 D. F. & J. 246. (/) Moulton V. Edmonds, 1 D, F. & J. 251 ; Burnett v. Lynch. 5 B, &. C. 601 ; Battersbee v. Farrington, 1 Swan. 106. (g) Gillett v. Abbott, 7 Ad. & E. 786 ; Ford v. Lord Grey, G Mod. 45. But see Alexander v. Crosby, 1 J. & L. 666. {h) Marchioness of Annandale v. Harris, 2 P. Wms. 434. (i) Ford V. Lord Grey, 6 Mod. 4. PRESUMPTIONS. 103 recital may be taken not only as evidence of the existence, but as against the parties to the deed containing the reci- tal, as evidence of the execution of the recited instru- ment ij). Kecitals in a deed prepared by direction of a Court and settled by an ofl&cer of the Court, are more to be relied on than other deeds in consequence of the care with which facts and statements are required to be verified (k). Where facts have been mis-recited, the true state of facts may be shown (Z). 2. Presumptions. . Many matters of fact arise affecting titles of which no direct evidence can be given, and thus titles will often be dependent on conclusions of fact founded upon presump- tions. It has been said that there can be no presumption unless there is belief that the thing presumed has actually taken place. But it is because there are no means of creating belief or unbelief that presumptions are raised upon sub- jects of which there is no record. Presumption takes the place of belief (m). The foundation of the doctrine is that a man will naturally claim or enjoy that which belongs to him according to all human experience. And so, in the absence of all direct evidence presumption may, after a great lapse of time aided by other corroborative facts, such as uninterrupted enjoyment for a length of time and acquiescence or apparent acquiescence of those whose claims are adverse, be relied on, particularly where the importance of the fact is inconsiderable (n). In the absence of all proof or knowledge of facts there can be no presump- {j) Skipwith V. Shirley, 11 Ves. 04 ; Burnett v. Ly) ch, 5 B. & C. COl. {k) Lee Abs. 363. (l) Roe V. McNeill, 14 C. P. 424. (m) Hillary v Waller, 12 Ves. at p. 2 30. (n) Lee Abs. 363. 104 VERIFICATION OF THE ABSTRACT. tion except what the law itself points out. But inferences raising presumptions may be drawn from nothing being known to the contrary of an existing state of facts. The inability of the Court in many cases to gain a suffi- cient knowledge of facts upon which to base a conclusion has been one of the most frequent elements in the founda- tion of the doctrine of doubtful titles ; for the Court has refused constantly to act upon slender evidence and leave the title open to doubt or suspicion. The general rule as to presumptions is, that if the case be such that sitting with a jury it would be the duty of a judge to give a clear direction in favour of the fact, then it is to be considered as without reasonable doubt ; but if it would be the duty of a judge to leave it to the jury to pronounce upon the effect of the evidence, then it is to be considered as too doubtful to conclude a purchaser (o). A mere presumption, however violent, is always liable to be answered because it may be against the truth. In a recent remarkable case in this Province a husband left his home in search of employment. His wife, after the lapse of seven j^ears, believing him to be dead married again, and with her supposed second husband mortgaged the husband's land. The only daughter, the presumed heir-at-law, con- veyed her interest to the mortgagees. The latter sold the land under the power of sale in their mortgage to the defen- dant. After a lapse of more than thirty years the husband returned, brought ejectment for his land, and recovered, on the ground that his wife's possession which had been con- tinuous was his possession (p). ^ (i) Things rightly done — Deeds. The law never presumes that acts are wrongly done, or that fraud has been committed, unless there is good ground (o) Emery v. Grocock, 6 Mad. at p. 67 ; Cooke v. Soltau, 2 Sim. & St. 163 ; Hillary v. Waller, 12 Ves. at p. 254. (p) McArthur v. Eaglesm, 43 U. C. E. 406 ; 3 App. R. 577. IDENTITY OF PERSONS. 105 for believing such to be the fact ; presumptions, if made where nothing is known, are always that things are rightly done, or in favour of order and regularity (q). • . There is a presumption in favour of the formalities of deeds ; as of sealing and delivery on proof of signing (/•) ; that they are genuine if they come from the proper cus- tody (s) and bear nothing on their face to raise suspi- cion (t) ; that they have been delivered on the day of their date (u). And when they are thirty years old they are pre- sumed to be valid without any proof (v). (ii) Identity of persons. Where there is nothing to raise a doubt as to the identity of the persons named in the deeds, it will be presumed from the identity of names (w) ; though the possession of a deed or deeds by the person whose identity is in question makes the presumption stronger (x). Proof of execution of a deed includes proof that the party by whom the deed purpori,3 to be executed is not only a person of that name but the identical person in whom was vested the estate which the deed purports to convey {y) ; and the fact that a party was described as of York in one deed and as of Niagara in another was held not to be sufficient to rebut this presump- tion. So, in a case where the patentee, Francis Weis, conveyed to L. C. as " Francis Weast ", and executed by making his mark (his description being the same in both (q) Lee Abs. 465; Allison v. Eednor, 14 V. C. R. 459 ; 3Ionk v. Farlinger, 17 C. P. at p. 51 ; Henderson v. Spencer, 8 P. R. 402. (r) Dart. V. & P. 326. (s) Orser v. Vernon, 14 C. P. 573 ; Rogers v. Shortiss, 10 Gr. 243. (t) Lee Abs. 436. (u) Hayward v. Thacker, 31 U. C. R. 427. (v) Gov. Con. Ev. 13 ; Doe d. Maclem v. Turnbull, 5 U. C. R. 129 ; Re Biggins, 19 Gr. 310 ; Monk v. Farlinger, 17 C. P. 41. (w) Nicholson v. Burkholder, 21 U. C. R. 108. And see Lawson Pres. Ev. 248, et seq. (x) Boran v. Reid, 13 P. C. 393. {y) Rogers v. Shortiss, 10 Gr. 243. 106 VERIFICATION OF THE ABSTRACT. the patimt and the conveyance), it was held that evidence of the deed having been in the custody of the heir-ut-law of L. C. was sufficient evidence of the identity of the grantor with the patentee of the Crown {z). But where a deed was executed in a foreign country dur- ing the progress of an investigation for quieting a title, for the purpose of removing a blot on the title, satisfactory evi- dence of identity and execution was required (a). (iii) Officials and official acts. It is presumed that persons occupying official positions and known by reputation as the persons who have been appointed thereto were duly appointed (6). Copies of registered instruments certified by the Kegistrar, and the Eegistrar's certificate endorsed on registered instruments are always received without proof that the person certifying is the Eegistrar. But in a recent case in Manitoba a copy of a book which would have been evidence if produced (under 14 & 15 Vict. cap. 99, sec. 14 Imp.) certified by "A. Eussell, Acting Surveyor-General," was rejected with- out proof that A. Russell was the custodian (c). By statute the certificates of various public officers are receivable without proof of signature {d). And there is a presumption that all things done by public officers are rightly done until the contrary is proved {e), (z) Wallbridpe v. Jones, 33 U. C. R. 613. See also Brown v. Livingstone, 29 U. C. R. 520 ; Simpson v. Dismore, 9 M. & W. 47 ; Sewell v. Evans, 4 Q. B. 626; H amber v. Roberts, 7 C. B. 861. (a) Re Hay, 29th January, 1869. (b) Hall V. Jarvis, Dra. 190 ; Smith v. Redford, 12 Gr. 316 ; Regina v. Fee, 3 Ont. R. 107 ; School Trustees v. Neil, 28 Gr. 40H ; Lawson Pres. Ev. 47, et seq. (c) McKilligan v. Machar, 6 C. L. T. 311. And see Nicholson v. Parje, 27 U. C. R. 318. (d) See ante p. 93. {e) Allison v. Rednor, 14 U. C. R. 459; Monk v. Farlinger, 17 C. P. at p. 61. LIFE, DEATH AND SURVIVORSHIP. (iv) I/rfe, death and survivorship. 107 There is a presumption that life continues (/). Love of life is presumed. And a person proved to have been alive at a former time is presumed to be alive at the present time, until death is proved or a presumption of death arises ig). As to presumptions of death the rule is thus stated : — "An absentee shown not to have been heard of for seven years by persons, who if he had been alive would natuially have heard of him, is presumed to have been alive until the expiry of such seven years, and to have died at the end of that term " {h). If the absentee went away temporarily the presumption arises as stated in the rule ; but if he went away with the intention of acquiring a new domicile the presumption does not arise until enquiry has been made at the new domi- cile (i). ^ Where a man w^ho was absent in British Columbia for several years, corresponding regularly with his family, wrote that he intended leaving about a certain day to return home, and was never afterwards heard from, evidence having been given that about the time mentioned in his letter he was seen at San Francisco to go on board the steamer Golden Gate, which was on the same voyage lost off the coast of Mexico, his name appearing in the list of passengers returned to the steamship company with the word "lost " written after it, and diligent enquiry having been made for him without success, his death was in a proceeding under the Act for quieting titles, presumed after nine years {j\ (/) Major V. Ward, 5 Ha. at pp. 603, 604. (g) Lawson Pres. Ev. 192 ; Henderson v. Spencer, S P. H. 402. (h) Lawson Pres. Ev. 200. (i) Lawson Pres. Ev. 212. U) Re Harris, 1872. lOS VERIFICATION OF THE ABSTRACT. An heir-at-law entitled to the benefit of a contract to purchase land, was, after an absence unheard of for twenty- five years, presumed to have abandoned his contract ; and purchasers from the brothers of the heir-at-law, who had adopted the contract and paid the purchase money, were held 'entitled to conveyances from the original vendor (k). Continued absence unheard of for more than seven vears of the demandant's husband lias been held sufficient to raise a presumption of his death so as sustain an action o f dower (l). One who is proved to have been unmarried when ^ast known to be alive will be presumed to have died childless ; but it is otherwise when he or she was married when last known to be alive (/«). Where there was evidence of a negative sort, which, though not conclusive, was sufficient to warrant the presumption of the death of certain i)arties in a partition matter and also that they had died intestate, Blake, V.C., in the absence of positive proof refused to presume that they had died unmarried and without issue (w). As between vendor and purchaser the rules as to presumptions of death are said to be guides to the con- veyancer rather than authorities which would be held binding on a purchaser (o). There is no presumption as to the order in which two or more persons died who are shown to have perished in the same accident, shipwreck or battle. The law regards them as having died at the same instant (p). The matter is in fact incapable of being determined where there is no evidence. The party alleging survivorship must prove it. But if the accident is of such a character that it will pro- (k) Burns v. Canada Co., 7 Gr. 587. (l) Giles \. Morroic, I Ont. B.. 527. (m) Lawson Pres. Ev. 197, et seq. (n) McDonald v. Forbes, 1 C. L. T. 333. (o) Dart V. & P. 343. (jo) Lawson Pres. Ev. 240. WOMEN PAST CHILD-BEARING. 109 duce death according to the degree of exposure, difference in age, sex or heaHh may raise an inference of survivorship. The one who was last seen or heard aUve in a case where many have perished together will he presumed to have survived the others {q). (v) Women past ehUd-hearinr]. There is a presumption frequently acted upon that women of advanced age are incapahle of having issue. On this presumption money has been paid out of Court to parties entitled in default of issue on their undertaking to return the money if issue should be born (r). But the circumstances may justify a payment without an under- taking {s). In a recent case a widow of fifty-three years of age who had never had any children was held entitled, on this presumption, to a reconveyance from trustees of laud conveyed by her to them in settlement on her marriage, the remainder after the death of herself and her husband being limited to her issue {t). Forty-nine years and nine months is the earliest age at which the presumption has been acted on ; that being the case of a married woman who had never had children {u). Lord St. Leonards thought that the presumption should not be made against a pur- chaser ; but Mr. Dart thinks it might be acted upon. > (vi) Legitimacy and marriage. In matters of pedigree there is a presumption that a child born in wedlock, even a day after the marriage, is the child of the husband (r). It may be rebutted by proof of the husband's incompetency, or his absence at the iq) Lawson Pres. Ev. 246. (r) Leng v. Hodges, Jac. 685, and notes ; Brown v. Fringle, 4 Ha. 12-4. (s) Mills V. Knight, 12 Jur. 666. {t) Farrell v. Cameron, 29 Gr. 313. (m) See Dart V. & P. 345, 346, and notes. (v) Dart V. & P. 336 ; Lawson Pres. Ev. 108, et seq. 110 VERIFICATION OF THE ABSTRACT. time during which the child must in the course of nature have been begotten, or his presence under such circum- stances only as afford clear and satisfactory proof that there was no sexual intercourse (w). This presumption cannot be rebutted by the admissions or declarations of the husband or wife as to non-access, even when the child was conceived before but born after the marriage {x). In questions relating to property cohabitation and general reputation of marriage are sufficient to raise a presumption of marriage (y) ; and when the cohabitation has been long continued the presumption is stronger {2), This presumption may be rebutted by the proof that the woman formerly lived with another man in such a manner as to raise the same presumption of marriage with him (a). But the presumption is strong in favour of the regularity of the marriage and very clear evidence must be given to rebut it {h). Where a marriage in fact has been proved evidence of reputation and cohabitation is not sufficient to establish a prior marriage (c). And where evidence of reputation and cohabitation is given, and evidence is also given of the ceremony, it is not necessary to prove publication of banns (d), or the authority of the clergyman who offici- ated (e). (vii) Satisfaction of mortgages. Where a mortgagor continued in possession for more {w) Dart V. & P. 337. And see Evans v. Watt, 2 Ont. R. 166, and cases there cited. (z) Ryan v. Miller, 21 U. C. R. 202; 22 U. C. R. 87 ; Evam v. Watt, 2 Ont. R. 166. (y) Lawson Pres. Ev. 104 ; Doe d. Wheeler v. McWilliams, 2 U. C. R. at p. 80 ; Baker v. Wihon, 8 Gr. 276. {z) Doe dem. Breakey v. Breakey, 2 U. C. R. 354. (a) George v. Thomas, 10 U. C. R. 604. (b) Doe dem. Breakey v. Breakey, 2 U. C. R. 354. (c) Doe dem. Wheeler v. MacWilliams, 3 U. C. R. 165. (d) Doe dem. Wheeler v. MacWilliams, 2 U. C. R. 77. (e) Baker v. Wilson, 8 Gr. 376. MISCELLANEOUS. Ill than twenty years after the mortgage (under the old law as to limitations of actions) without paying interest it was presumed that the money was paid on the day and that the mortgagee had no subsisting title (/). Where a mortgage was satisfied, before the day for redemption, by the conveyance of the mortgaged lands to a nominee of the mortgagee, who took and maintained possession for thirteen yo^rs, it was held that a convey- ance from the mortgagee to the assignee of the equity of redemption might be presumed as against an assignee of the satisfied mortgage (//). And where the mortgage deed is in the possession of the mortgagor, or some one claim- ing imder him, it afifords a fair presumption that the mort- gage has been satisfied, and a reconveyance made (//). (viii) Miscellaneous. Where one to whom a devise is made, being aware of it, neither expressly rejects nor accepts it, he will be presumed to accept it (i). A person in possession is presumed to claim by a right- ful and not by a wrongful title (j). And so, where a person had been for a number of years in possession as a tres- passer, but not long enough to acquire a title, and took a con- veyance from one who had but a life estate in the land, it was held that he must be presumed to claim the life estate under the deed, and that he could not rely on his possession (which had subsequently extended to a period long enough, but for the deed, to have giv .n him a title) as having barred those in remainder (A). ( f) Doe dem. Diinlop v. McNab, 5 U. C. R. 289 ; Doe dem. McGregor v. Hau'ke, 5 O. S. 496. (g) Doe dem. McLean v. Whitesides, o O. S. 92. (h) Collins V. Dempsey, 14 U. C. R. at p. 395. (0 Re Defoe, 2 Ont. R. 623 ; Re Dunham, 29 Gr. 258. ij) Re Dunham, 29 Gr. 258. (k) Gray v. Richford, 2 S. C. R. 431. 112 VERIFICATION OF THE ABSTRACT. Intestacy depends upon negative proof, i. e., that the de- ceased did not make a will, and therefore is incapable of ac- tual demonstration. Letters of administration are, in the absence of special circumstances, accepted by conveyancers as sufficient to raise the presumption, or a will not affecting the land in question or pu,tting the heir to his election (l). (l) Dart V. & p. 335. INCUMBRANCES. 113 CHAPTER VII INCUMBRANCES. 1. Mortgages and incumbrances generally. 2. Taxes. 3. Local improvemexAS — Drainage — Sewers. 4. Executions. 5. Registered clouds. 6. Vendor's lien, 7. Crown bonds. 8. Lis pendens. 9. Dower. 10. Curtesy. 11. Easements. 12. Mechanics' liens. 13. Discharges of mortgages. It is the purchaser's duty to examine the registry, to enquire at the Sheriffs office for executions against the lands of his vendor, and to search for arrears of taxes. He is assumed to have actual notice of all registered instru- ments whether he searches or not (m). But, this being done, he is under no obligation to ask for unregistered in- cumbrances or interests if he has no actual notice of them (n). He is entitled to rely upon the registered title, and to assume that if any unregistered interests do actually exist (;«) T. & L Co. V. Sluiu, 1(5 Gr. 446 ; Dominion L. db S. Soc'y v. Kit- tridne, 23 Gr. f ^5. (n) Apra Ba. v. Barry, L. R. 7 H. L. at p. 157. A. T. — 8 114 ' INCUMBRANCES. they will be fraudulent and void as against his conveyance when registered (o) ; the policy of our law being that pur- chasers should be able to ascertain the actual state of the title by search in the public offices (p). The proposition that the purchaser is assumed to have notice of registered interests whether he searches for them or not, is to be taken as affecting only the relationship between himself and the owners of the registered interests; for, as against the vendor, the purchaser is under no obli- gation to search, and ii the vendor makes any misrepresen- tation whereby the purchaser is induced to accept the title he will be held responsible for the injury thereby done to the purchaser. So, where a fourth mortgagee represented that his security was a second mortgage, and so induced the plaintiff to purchase it, the latter was held entitled to a return of the money paid on discovering that the mortgage was worthless, though he i\.'ght have ascertained the truth by a search in the registry office {q). And the ven- dor and his solicitor are also under a statutory liability, both civil and criminal, for concealment of documents and falsilication of pedigrees (r). 1. Mortgages and incumbrances generally. When an estate is offered generally for sale the purchaser has a right to assume that the title is good, and that it is free from incumbrances, and he has a right to require this to be show^n before he can be compelled to pay any part of his purchase money (s). As the vendor has a lien on the estate for his purchase money, so the purchaser has, as against the vendor, a lien on his purchase money for the discharge of incumbrances which the vendor ought to (o) E. S. O. cap. Ill, sees. 74, 81. {p) Johnston v. Reid, 25) Gr. 299. (q) Ban- V. Doan, 45 U. C. K. 491. (»•) Ante p. 37. (.s) Gamble v. Gummerson, 9 Gr. 200; (Jaineron v. Carter, 9 Ont. R. 431. MORTGAGES AND INCUMBRANCES GENERALLY. 115 remove (t). And so when an incumbrance is discovered before conveyance and payment of purchase money, the vendor must discharge it, whether he has or has not agreed to covenant against incumbrances, before he can compel payment of the purchase money (u) ; and the purchaser .,ay, though he is not bound to (v), apply the unpaid pur- chase money in removing; incumbrances (w). And where the purchase money is not payable immediately, but the time for payment is deferred by the agreement, or where it is payable by instalment? , the purchaser is still entitled to an enquiry as to title, and if it appear that there are incumbrances outstanding he is imtitled to be secured against them or to pay his money into Court to create a fund for their discharge, even though they may mature before his purchase money becomes due (x). And in one case where a decree for specific performance directed a conveyance free from incumbrances, the Court, on the vendor's default, limited a time within which he should discharge an incumbrance against the land, failing which the purchaser was to be at liberty to procure an assignment or discharge and take his remedy against the vendor for the amount necessary to be paid, the purchase money in Court being applied pro tanto to satisfy the incuml ranee (y). After payment of the purchase money but before convey- ance the purchaser may recover the purchase money though the intended covenants are not to extend to the title under which the purchaser is threatened {z). After conveyance the purchaser is, as a general rule, (0 Gamhlev. Gummerson,d Gr. 201. (u) Sug. 548; McDermott v. WoHnnan, 24 U. C. R. 467. (r) GamhU v. Gummerson, 9 Gr. 198. [w Waters v. Shade, 2 Gr. 4(57 ; Tidly v. Bradbury, 8 Gr. 504 ; Church Society v. McQueen, 15 Gr. 281 ; Henderson v. Brown, 18 Gr. 80. (c) Cameron v. Carter, 9 Ont. R. 42G, overruling Chantler v. ince, 7 Gr. 432 ; Thompson v. Brunskill, 7 Gr. 542 ; Wardell v. Trenouth, 24 Gr. 465. iy) Stammers v. O'Donohoe, 29 Gr. 04. (z) Sag. 549. 116 INCUMBRANCES. - confined to his remedy upon the vendor's covenants (a). If the vendor and purchaser are l)oth ignorant of any incum- brances, and the vendor is entirely innocent, the purchaser, after conveyance, has no remedy whatever against the vendor if he is obhged to pay off an incumbrance subse- quently discovered, unless it be one within the vendor's covenants (6). Where the purchaser has actual knowledge of an incum- brance and does not insist upon its being discharged by the vendor, or paid out of the purchase money, but completes the purchase by taking a conveyance and securing the purchase money, taking from the vendor an indemnity against the incumbrance, he will be considered as having elected to rely on the- indemnity (e). In one case the purchaser paid his purchase money and took a conveyance with a covenant for further assurance on the verbal agreement of the vendor to remove a mortgage disclosed at the time of sale ; and it was held that a bill would lie to compel the removal of the incumbrance, and that the vendor was bound to remove it by his covenant for further assurance (d). ■ As long as the mortgage for the purchase money remains in the hands of the vendor, the purchaser has a potential equity to a lien thereon to the extent of any incumbrances which the vendor ought to discharge (e) ; but the relief which he may obtain by asserting his lien will be granted only to prevent unnecessary circuity of action (/), and if the vendor appropriate the purchase money by assigniiij^ his right to it, or by assigning his security, the purchaser {<{) Re Kennedy, 26 Gr. 35, 36. {h) Re Ruck, Peck v. Ruck, 6 P. R. 98 ; Urm^ton v. Pate, Cru. Dig. Tit. 82, cap. 25, sec 90. (c) TuUi/ V. Rradbnn/, 8 Gr. 564 ; Egleson v. Hoice, 3 App. R. 575 ; Whitehome v. 7?oo/.s-, 20 U. C. R. 76, 78. {d) Tripp V. Griffin, 5 C. L. J. 117. And see Clark v. Rogart, 27 Gr. 450. (e) Per Strong, V.C. in Henderson v. Rrown, IS Gr. 95. (/) Tully V. Bradbury, 8 Gr. 565; Kyleson v. Howe, 3 App. R. 575. MORTGAGES AND INCUMBRANCES GENERALLY. 117 will be relegated to his original right of action against the vendor, and will not be entitled to assert his lien against the assignee {g) unless he is a volunteer (/i). And though the assignee may have notice of the prior incumbrance, the purchase, the covenant for payment of the purchase money in the mortgage securing it, and the covenant to indemnify the purchaser against the prior incumbrance, he is not bound to infer that it was the intention of the parties that the purchaser should have the right to apply his unpaid purchase money upon the outstanding encumbrance (?). But if the purchaser has paid the outstanding incumbrance before the assignment of the mortgage, so as to give him a right of set off, he will be entitled to relief as against the assignee (j). When the vendor is aware of an incumbrance or defect which he conceals from the purchaser, then, whether it is or is not within his covenants, the purchaser on discovery thereof is, even after conveyance, entitled to rescission of the contract and to recover his purchase money on the ground of fraud (k). And where a conveyance was made to a married woman by the appointment of her husband, containing a covenant against incumbrances, and the husband joined with his wife in a mortgage to secure the purchase money and covenanted to pay it, it was held that neither the vendor, nor a volunteer to whom the vendor had assigned the mortgage, could compel payment thereof without giving credit for the amount of an incumbrance created by the vendor which the latter had concealel (/). {(]) Tnllij V. Ih'adbnnj, 8 Gr. ofJl, approved in Kfjleson v. Howe, 3 App. R. ^iji), overruling Church Societ;/ v. McQueen, 15 Gr. 2S1, and llend'r.ioii V. Brotcii, 18 Gr. 7i), for tlie ra.iso.is st itad in the dissenting judgment of Strong, y.C, in the latter case ; Wood v. Paije, 26 Gr. 305. (h) Lovelace v. Harrington, 27 Gr. 178. (/) Eglesoii v. Howe, H App. R. 576. (j) Per Strong, V.C, in Henderson v. Brown, 18 Gr. at p. 1)1, citing WaUon V. Mid-Wale>i It. W. Co., L. R. 2 C. P. 593. {k) Edwards v. M.Le^^y, Coop. 308 ; lie Buck, Beck v. Buck, 6 P. R. yj. (/) Lovelace v. Harrington, 27 Gr. 178. 118 INCUMBRANCES. It has been held thr.'. a purchaser cannot after con- veyance set ofif against or retain from the purchase money unascertained damages in consequence of sales of the land bein;:^ prevented by the existence of incumbrances which the vendor ought to have discharged (m) ; and in a foreclosure suit the defendar.t was refused an account of damages for failure of tifle or on account of incumbrances (n). But in a late case where specific performance with compensation was asked, the decree directed the Master to make an allowance to the plaintiff for damages on account of misrepresentations of fact made b}' the defendant («>). And no doubt the cross relief could now be obtained in the Same action. Wiiere there is a mere covenant to indemnify and save harmless the purchaser from an incumbrance, it is not broken by the maturing of the incumbrance unless the purchaser has been disturbed by the incumbrancer (2>). There is a distinction between a c )ntract to purchase an estate subject to an existing mortgage, that is, to purchase a mere equity of redemption, and a contract for the purchase of an estate in mortgage for a given sum of which the mortgage debt forms part, and which is to be retained by the purchaser out of the purchase money (q). In the former case the land remains the proper fund for the dis- charge of the mortgage ; in the latter, the purchaser becomes personally liable to the vendor for the discharge of the outstanding mortgage. Where a purchaser took a conveyance of land in consi- deration of " $1050 and assuming the payment of the mortgages " which the vendor had covenanted with a previous owner to pay, it was held that, upon maturity of («i) Stevenson v. Hodder, 15 Gr. 570. (n) Hamilton v. Buiiting, 13 Gr. 484. (o) Stammers \. O'Dohohoe, 2S Gr. 207. {p) Le( ning v. Smith, 25 Gr. 25(5. {q] Coote on Mortgage, 904, UG5 (18.S0). MORTGAGES AND INCUMBRANCES GENERALLY. 119 one of the outstanding mortgages and before its payment had been enforced, the purchaser was bound as against the vendor to pay it off and save him from personal liability thereon (r). And in another case, where a purchaser took a conveyance which described the land as being " subject to a mortgage," it was held, upon administration of his estate, that the mortgagee was entitled to prove on the general estate for the amount of the mortgage. The acceptance of such a deed implies an agreement to in- demnify the vendor, but does not amount to an undertaking to pay the debt unless the mortgage debt is a part of the con- sideration (s). The liability of one who purchases land in mortgage and incurs an obligation to remove the vendor's mortgage, exists after he has parted with the estate, and if the vendor is sued upon the mortgage he may recover from the purchaser the debt and his costs of suit It). But in such a case where a purchaser subject to a mortgage sold the land and afterwards bought it under a decree obtained by th ) mortgagee on his mortgage for a sum less than the mort- gage debt, it was held that he was entitled to the land free from any lien for the balance of the mortgage debt ; for though the mortgagee might sue the mortgagor for the balance due, the mortgagor might never ask relief over against the purchaser (ii). • Where a vendor sells portions of land under mortgage, taking covenants from the purchasers to pay proportionate parts of the mortgage debt, he cannot compel them to pay their proportionate parts without himself paying his pro- portion. And, probably, any purchaser who paid the proportion due by any other purchaser would be entitled to stand in the place of the mortgagee pro tanto as against the (r) Canavan v. Meek, 2 Ont. R. 636. {«) Re Cozier, Parker v. Gl&ver, 24 Gr. 537. (t) Joke V. Duffy, 5 C. L. J. 141. (m) Forbes v. Adamson, 1 Ch. Cli. 117. 120 INCUMBRANCES. one whose proportion he paid (r). But where a vendor sold the whole mortgaged premises in two parcels to Costello and Norris, the one becoming liable to him for a mortgage of $1600, and the other for a mortgage of $500, and Costello having made default the mortgagee sold the lind under the power of sale in his mortgage, and Norris bought to save himself, it was held that he had no recourse against Costello (w). If a purchaser takes land subject to an incumbrance enquiry should be made of the incumbrancer as to the amount due tbereon taking care to inform him of the object of the enquiry (x) ; and though it may be that a mortgagee need not answer any enquiry as to the particulars of his security unless the applicant is entitled and offers to redeem him (?/), yet if he does answer he will be bound by his reply {z). But a statement made to the vendor (mortgagor) by a mort- gagee was held not to bind him in the absence of evidence that the enquiry by the vendor had been made on behalf of the purchaser, and that the mortgagee was awa"e of it (a). A mortgage though on its face made to secure payment of a specific amount, may be proved by parol evidence to be for a running account, and intended as a continuing security. In McMaster v. Anderson (h), a mortgage having been given by Anderson to McMaster for £125, payable at a certain time, the mortgagor afterwards sold the equity of redemption to Nigh, at the same time showing him a receipt in full of all indebtedness signed by the plaintiff and dated subsequent to the mortgage. On a bill being filed for fore- closure after the mortgagor's death, Spragge, V.C, admitted parol evidence to show that the mortgage, although given (v) Clemow v. Booth, 27 Gr. 15. {w) Norris v. Meadoics, 7 App. E, 287. (x) Ibbotson v. Rhodes, 2 Veru. 554. {y) Dart V. & P. 450. [z) Ibbotson v. Rhodes, 2 Vern. 554. (a) Moffatt V. Bank of U. C, 5 Gr. 374. (b) Ms. 22naMay, 1865. TAXES. 121 for a specific sum, was in fact intended as a continuing security for the mortgagor's indebtedness from time to time, not exceeding ^'125. His Lordship said, '' I think Nigh can stand in no better position than Anderson. It was his duty to have inquired of the mortgagee." In Stark v. Shepherd (c) a purchaser took a conveyance of land subject to a building society mortgage, paying a portion of the purchase money in cash, assuming the mortgage " on which $664 is yet unpaid," and giving a mortgage for the balance. It appeared on enquiry that the building society claimed a number of small instalments amounting in all to $1189.25. It was held that the pur- chaser was entitled to retain the cash value of the mortgage at the date of the purchase if the society would accept it, but if not then such sum as with interest on it would meet the accruing payments. 2. Taxes. Taxes charged upon land are an incumbrance, and if there are any in arrear the vendor should remove them (rf)» Search should therefore be made in the County Treasurer's office, and a certificate obtained from him. The certificate should show on its face that the statement of taxes in arrear for the preceding year has been returned by the Township Treasurer to the County Treasurer (c). If it does not show this, then a cert ' ate should be procured from the Town- ship Treasurer also, in which it should be stated that the collector's roll has been returned bv that officer to the Treasurer (/). If the roll has not been returned, the Col- lector's receipt for the taxes of the past year will be suffi- cient ; but the County Treasurer's certificate should be got in every case to show that there are no arrears. In (c) 29 Gr. 310. {d) R. S. O. cap. 180, sec. lOo ; Haynes v. Smith, 11 U. C. R. 57. (e) R. S. O. cap. 180, sec. 113. (f) R. S. O. cap. 180, sec. 101. 1*22 INCUMBRANCES. practice, it is usual to accept the collector's receipts with the County Treasurer's certificate without procuring a certificate from the Township Treasurer. After the Col- lector's roll has been returned to the Tov:nship Treasurer, and before the latter has made his return to the Countv Treasurer, arrears may be paid to the Township Treasurer ; but after he has made his return to the County Treasurer, no one but the latter has any authority to receive arrears (g). Search should also be made to ascertain whether there has been any sale of the land for taxes during the preceding eighteen months. This period is fixed by the Registry Act (/t), which provides that every deed made by a Treasurer or other officer for arrears of taxes shall be registered with- in eighteen months after the sale, otherwise the party claiming under any such deed shall not be deemed to have preserved his priority as against a purchaser in good faith who has registered his deed prior to the registration of such tax deed. Taxes for any year are considered to have been imposed and to be due on the first day of January of the current year, unless otherwise provided for by the enactment or by- law under which they are directed to be levied a). In the absence of agreement to the contrary the vendor assumes the payment of the proportion of the taxes for the year up to the completion of the title, the purchaser assuming the remainder (j). Taxes for the current year, though due by statute on the first day of January, and before they are actually imposed, are not *' in arrear " during the year ; and therefore a cove- nant against arrears of taxes contained in a deed is (g) R. S. O. cap. 180, sec. 116. (h) Sec. 76. (/) 46 Vict. cap. 18, sec. 366. (j) Peoples' Loan Co. v. Bacon, 27 Gr. 294 ; Bank of Montreal v. Fox, 6 P. R. 217. Harrison v. Joseph, 8 P. R. 293 must be considered as over- ruled by Peoples' Loan Co. v. Bacon; it was never acted upon in practice. LOCAL IMPROVEMENTS, ETC. 12a not broken by non-payment of the taxes for the current year (A:). . . If the purchaser comple'es the contract by paying or securing his purchase money, and taking a conveyance, he will have no recourse against the vendor in the absence of fraud, except under his covenants. And so, where the covenants are limited to the acts of the vendor there is no breach if the taxes accrued previous to the vendor's owner- ship (l). But at a judicial sale a purchaser was allowed compensation for taxes even after a ^'esting order had issued (m). 3. Local improvf'vients — Drainnf/c — Sewers. Municipal Councils have power under the Consolida- ted Municipal Act, 18S3, upon petition, to pass by-laws for deepening or straightening streams, removing obstructions therefrom, and draining lands, and for this purpose to determine what lands will be benefited by the works, and to assess and levy a special rate upon the lands so benefited in the same manner as taxes are levied («). Every city, town, and incorporated village may pass by- laws for ascertaining what lands will be immediately bene- fited by any proposed improvements and to assess the lands benefited (o) ; and may also, upon petition, pass by-laws for sweeping, watering and lighting streets, and assessing the lands fronting thereon in order to defray the expense (p). Every county council has power upon petition to pass by-laws for levying by assessment on property within any particular part of one or parts of two townships the money necessary to defray the expenses of making, repairing, or (k) Corhett v. Taylor, 23 U. C. R. 454. [1) Harry v. Audemon, 13 C. P. 47 &c., of such estate as they be seised of in trust for him at the time of such execution sued (m). It has been held that a trust estate, to be saleable under this section, must be one in which the debtor has the sole beneficial interest, and not an estate of which the trustee is seised for the debtor jointly with another {n) ; or where the trust is for a special purpose, as to divide the estate amongst children (b). . : rr t! ^v 5^ Registered clouds, ' " ' ' '' ' • r-; ... ........ . , .. . ' "■ ■'■ :• >ui The existence on the register of a deed which does not form a link in the chain of title constitutes a cloud which the purchaser should require to be removed. ' ^ The decisions on deeds of this character are by no means satisfactory, and it is to be hoped that in future a more (j)i?ePope, 34 W.E. 693. '''* ' (A") R. S. O. cap. Ill, sec. 2, s-s. 1. ' , (l) R. S. O. cap. Ill, sees. 74, 80. (m) Prid. Judg. 15. (n) Doe d. Hull v. Greenhill, 4 B. & Aid. 684 ; Simpson v. Smyth, 1 E. & A. at p. 44. (o) McLean v. Fisher, 14 U. C. R. 617. REGISTERED CLOUDS. 138 liberal judicial policy in dealing with such cases will take the place of the narrow principles which have heretofore been laid down. In considering the subject it may be well to adopt a divi- sion which results from a classification of decided cases, and is as follows : — 1. Fraudulent deeds. 2. Deeds made by persons having no apparent title, sometimes called bastard deeds. 3. Deeds void on their face. 4. Voluntary deeds. 1. Fraudulent deeds. In cases of fraudulent deeds Courts of Equity have always exercised jurisdiction, and upon proof of the fraud have decreed their cancellation (p). And so where it was alleged in the bill that a grantor had made a second deed *' intending to defraud the plaintiffs of their security," and the second grantee caused his deed to be registered, whereby " he acquired the legal estate in the premises in fraud of the plaintiffs," it was held on a motion for a decree pro confesso that the fraud being admitted the deed should be cancelled ((/). ... 2. Bastard deeds. Where a deed appears upon the register made by a person who has no apparent title the Courts have held that the owner of the land has a right to its cancellation. The reason for this is thus put by Spragge, Y. C: — "In this case there would be an apparent defect. It would be in the absence of a link in the chain of title between the grantee in the last registered deed and the grantor in the next, i.e., Scott the grantor to Wales ; but it would not follow necessarily that Scott could not have had title^ for he might, e.g., have had it by descent ; and if he had, a conveyance from him would of course be good with- out showing upon the face of it how he derived his title " (r) ; and the Court decreed the cancellation of the deed. So, ip) Harkin v. Rabidon, 6 Gr. 405 ; 7 Gr. 243. (q) Ross V. Harvey, 3 Gr. 649. (r) Dynes v. Bales, 25 Gr. 593, 596. See also Shaw v. Ledyard, 12 Gr. 593 ; McGregor v. Robertson, 15 Gr. 543. 134 INCUMBRANCES. where a person having no title whatever to land registered a document containing a declaration that he intended, upon a certain event, to assert and establish his title thereto, and cautioning all persons against dealing with the land, it was held that the instrument should be cancelled. But the decision was based upon the ground that the instrument was one whose registration was not contemplated by the Begistry Act (s). - .... ,■-.■ . '. . ' .-.f ■ 3. Deeds void on their face. When a deed is void upon its face the Courts have refused to interfere with it. So, in Hurd v. Billinton (t) where a conveyr/iice was made by one who had a power of attorney to make contracts for sale only, but not to execute deeds, it was held that, though the conveyance was not void upon its face, yet upon reference to the power of attorney it would be seen to be void, and therefore it did not form a cloud upon the title. The Court, however, accompanied the dismissal of the bill with a decla- ration of the reasons for so doing, and so indirectly gave the plaintiff the relief asked for. 4. Voluntary deeds. In Buchanan v. Campbell (u) the Court, following Hurd v. Billinton, refused to decree the cancellation of a voluntary deed on the ground that, as against a bona fide purchaser for value , it was void. A distinction was drawn between this case and Ross v. Harvey {v) where the deed was voluntary, but was also alleged to have been executed in fraud of the plaintiff. A voluntary deed, however, is not now void as against a sub- sequent purchaser for value merely on account of want of consideration, if it has been executed in good faith and registered before the execution of the second deed {w). It u not always possible to ascertain from an examination of the («) Ontario Industrial L. (& I. Co. v. Lindsey, 4 Ont. R. 473 ; 3 Ont. R. 66. (() 6 Gr. 145. (w) 14 Gr. 163. (v) 3 Gr. 649. (w) Ante p. 74. REGISTERED CLOUDS. 135 registered title whether a voluntary deed is or is not valid. For it frequently happens that a conveyance is executed pending an investigation of title, but is not dated until com- pletion ; and a voluntary conveyance executed and regis- tered after the execution of the conveyance for value, but registered before registration of the latter, would appear on the register to have been registered before the execution of the conveyance for value. In many deeds also the true consideration is not inserted ; and a deed voluntary upon its face may be a conveyance for value, and vice versa. And great latitude is allowed in admitting evidence to show what the true consideration is (x). The true state of facts in many cases cannot be ascer- tained without a judicial investigation ; and therefore it is submitted that the jurisdiction of the Court should be exer- cised to declare the rights of the parties and adjust them on the register, even when a deed appeais on its face to be voluntary. Tiiese cases (except those of bastard deeds) have all been decided upon English authority, and the relief asked was in each case the cancellation of the deed or similar relief. But a principle more applicable to our system of registration is that enunciated by Mowat, V. C, in Shaw v. Ledyard (t/), and Strong, V. C, in Truesdell v. Cook {z), namely, that the registration of a deed, though it may be void in itself or the claim of the grantee thereunder entirely unfounded, tends to embarrass the title of the true owner, and entitles him to a judgment containing a declaration of the invalid- ity of the deed which he may register. The Court compels a vendor to make out a good regis- tered title to the purchaser by putting all necessary deeds upon registry (a), and it should give him the corresponding {x) Myles v. Noble, 1 C. L. T. 214. iy) 12 Gr. 382. {z} 18 Gr. 537. (a) Kitchen v. Murray, 16 C. P. 69 ; Brady v. Walls, 17 Gr. 703. 186 INCUMBRANCES. relief of removing or nullifying the effect of deeds wrongly registered which form a cloud on his title. A vendor is unable in many cases without the aid of the Court to estab- lish to the satisfaction of a purchaser that a deed wrongly registered is void and innocuous ; and a well-advised pur- chaser will never take upon himself the responsibility of determining the validity or invalidity of a deed. The Court in one case {b), as we have seen, dismissed tbe owner's action, but the decree was accompanied by a declaration that it did so because the deed in question was harmless. A judgment simply declaring such a deed void would be more in harmony with justice to the real owner ; and what- ever doubt may formerly have existed as to the jurisdiction of the Court to entertain such an action, there is no doubt that the plaintiff has now a statutory right to such a judg- ment (C). ,;.. .. • ,.v • ■' . ' r .-. The case of Weir v. The Niagara Grape Co. (d) cannot be accepted as a true exposition of the law. The plaintiff being a bona fide purchaser for value without notice of tbe defendants' agreement gained priority by registration, and the agreement was therefore fraudulent and void as against him. But the Court declared it fraudulent and void only on terms of his discharging it by payment of all sums due under it which formed a lien on the land. In other words, the Court declared the agreement void on condition that the plaintiff should accept it as valid. * . It may be that in this case the relief asked, namely, the cancellation of the agreement, was not the proper relief (e). The agreement itself was good between the parties, and should not have been cancelled ; and in all cases of compe- ting deeds under the Registry Act the cancellation of the postponed deed would perhaps be improper. But as the (6) Hurd V. Billinton, 6 Gr. 145. (c) 48 Vict. cap. 13, sec. 5. {d) 11 Ont. R. 700. (e) This however might have been amended. CROWN BONDS. 137 Act declares the postponed deed to be fraudulent and void as against a purchaser, the purchaser has an undoubted right to a judicial declaration that the deed is as to him fraudulent and void, thus removing its detrimental effect upon the title of the true owner, while the deed remains a auhsisiiuginsivument inter jmrtes. ' . . I -■-(i: > I 6. Vendor's Lien. ji As we have seen (/), no equitable lien, charge or interest affecting land is valid as against the registered title. Unless, therefore, a purchaser has express notice of a lien he takes free from it. In Watson v. Dowser (g) a loan company advanced money to pay off a vendor who had agreed to sell by a registered agreement, and took a mort- gage which they registered. The company's agent inquired of one who had the custody of two mortgages registered before the company's mortgage whether they vvere paid off, and was told that they were, and would be discharged. He then -mid the vendor and a conveyance was made to the mort- gagor. It was subsequently discovered that the two prior mort- gages were not paid off, and the loan company then claimed to stand in the place of the vendor to the extent of the pur- chase money which they had paid him ; but it was held that the lien was gone as they had not taken an assign- ment, and they were relegated to their position of third mortgagees (h). If they had taken an assignment they would have been entitled to the relief asked (i).. u liH ii li} V hili- 7. Crown Bonds. ■ rm ■..iii\ ■>u Before the Provincial Act presently referred to debts by bond to the Crown bound the debtor from the time of the (/) Ante p. 73. (g) 28 Gr. 478. (h) See alsj Imperial L. Jb S. Co. v. 0' Sullivan, 9 P. R. 162. (i) See T. d- L. Go. v. Gallagher, 8 P. R. 97. 138 INCUMBRANCES. instrument, even though no default should happen till many years afterwards, and though the debtor had aliened his lands to a purchaser before default (j). , .*j, By the Consolidated Statute of Upper Canada it was enacted that no bond etc. whereby any obligation should be incurred to Her Majesty should be valid to charge lands as against any subsequent purchaser or mortgagee unless a copy were registered in the office of the Clerk of the Court of Queen's Bench at Toronto, before the execution of the conveyance to the subsequent purchaser or mortgagee. There was also a provision for a release of any lands from the operation of the bond. By the Revised Statute of Ontario, chapter 93, bonds to the Crown made or to be made after the 15th August, 1866, are to bind real property to no greater extent than bonds between subject and subject ; and the real estate of any debtor to the Crown is to be bound only to the same extent and in the same manner as the real estate of any debtor where the debt is due from one subject to another. By the same Act, from and after 1st January, 1874, any lands theretofore bound by registration of any Crown bond, are released from the charge so created, so far as the same is within the authority of the Province. There are many bonds registered which are given by public servants and officers of the Dominion, and which are therefore not within the scope of this Act. Search should therefore still be made for Crown bonds in the office of the Queen's Bench Division at Toronto, and if any are dis- covered which provide for the performance of duties by Dominion officers, they should be cancelled, or the land released from their ope^'aition. The Referee of Titles under the Quieting Titles Act has a list of registered Crown bonds to which reference may be made in matters before him. (;) Leith R. P. Stat. 331. LIS PENDENS. 189 r. 8. hu pendens. When an action is pending in which the title to land is called in question, it is necessary in order to prevent the defeat of the purpose of the action by alienation of the land, to treat any such alienation as void as against any judg- ment which may be pronounced against the defendant ; and 80 a rule has been established that the purchaser is bound by the judgment delivered in the action. The rule was found- ed on public policy, for otherwise there might be no end to litigation {k), and was based upon the fiction that every man was presumed to be attentive to what passed in the Courts of Justice (/). Before the Act respecting registration of certificates of lis pendens the doctrine was a great hardship upon a bona fide purchaser. By this Act (m) "the filing of a bill or the taking of a proceeding, in which bill or proceeding any title or interest in land is brought in question, shall not be deemed notice of the bill or proceeding to any person not being a party thereto, until a certificate signed by one of the officers in the preceding section mentioned has been registered in the Registry office of the county or other regis- tration division in which the land is situate." Foreclosure and sale suits are excepted. ^ It will be noticed that the mere filing of the bill (or issuing of a writ under the present practice) is not to be notice ; but if a purchaser has actual notice of the action or proceeding in any other way, it is conceived that he would be bound though a certificate of lis pendens was not registered. A certificate of lis pendens is a mere allegation of a fact, i.e., that an action is pending, and the registration is (fc) Story Eq. Jur. sec. 406. (I) Ibid. sec. 405. {in) R. S. O. cap. 40, sec. 90. 140 INCUMBRANCES. designed to give notice to persons dealing with the land that some interest therein is called in question. And so it has been held that in a proper case for a lis pendens nothing will dissolve or discharge it but the termination of the action (n), even where an offer is made otherwise to secure the plaintiff (o). But it has also been likened to an injunction (p), and its design and operation is similar, and the plaintiff must be diligent in prosecuting his action ( q) ; and in one case the Court dissolved an injunction against parting with the land in question in order that an advan- tageous sale might be carried out, on the ground of convenience (r). ,• _ . , , _ ^^„., But a certificate of lis pendens issued in an action in which the title to land does not properly come in question is an abuse of the practice of the Court and will be set aside (s), and it will not of course affect a bona fide pur- chaser ; and if the action be collusive, fictitious or illusory the certificate will be set aside and a purchaser will not be bound {t). It has been said that a conveyance pendente We is void (m) ; but this is to be taken in a qualified sense. It is treated as not affecting or varying the rights of the parties in the action, who are not bound to take any notice of the tit^3 of a purchaser so acquired {v). The purchaser takes subject to any judgment that may be pronounced against the party from whom he acquires title {n-). _. 1< (n) Sheppard v. Kennedy, 10 P. K. 242. (o) Foster v. Moore, C. L. T. 534. (p) Per Blake, V. C, Finnegan v. Keenan, 7 P. R. 386. {q) Preston v. Tubbin, 1 Vern. 286. (r) Hadley v. London Bank of Scotland, 3 D, J. & S. 63. (s) White V. White, 6 P. R. 208. {t) Culpepper v. Astor, 2 Ch. Ca. 116, 223 ; Sheppard v. Kennedy, 10 P. R. 242. (u) Walker v. Smallwood, Amb. 676. (v) Metcalfe v. Pulvertoft, 2 V. & B. 200. (lo) Bp. of Winchester v. Paine, 11 Ves. 197. DOWER. 141 The mere registration of a lis pendens does not create an incumbrance upon the land, apart from the equity on which the litigation is founded. It is merely notice of the plain- tiff's claim, requiring all persons dealing with the land to look into the claim, and does not excuse a purchaser from completing his contract (a?). • :• r^ ::;.;. .. 9. Dower. • -,},' The inchoate right of a wife to dower in her husband's land is a species of incumbrance upon the estate, and a purchaser is entitled to have a release of dower by the vendor's wife or an abatement in the purchase money^ even though the contract does not expressly provide that the vendor is to procure such a release (y). ■ '^^ And not only in the case of the vendor, but with respect to every devolution of the estate in the chain of title should the purchaser assure himself either that dower has been barred or that no such right exists. If there exists any deed in which there is no bar of dower, or if the title is derived under a will, or by inheritance or succession, enquiry should be made whether the grantor was married at the time of the conveyance, and if so whether his wife is dead ; or if the testator or intestate left a widow. And if the widow of a testator is alive, the will should be read to ascertain whether she was put to her election, and if so, enquiry should be made as to whether she has elected. The requisites of dower are 1. Marriage. 2. Seisin of the husband. 3. Death of the husband {z). As to marriage. In this Province the same evidence of marriage which is accepted in matters of pedigree is suffi- cient to sustain the marriage where the dower of the wife (x) Bull V. Hutchens, 32 Beav. 615. (y) Van Norman v. Beaupre, 5 G-r. 599. Where the wife joins in the con- tract she is a necessary party to an action of specific performance : Loughead v. Stubbs, 27 Gr. o87- {z) Leith & Sm. Bl. 139. 142 INCUMBRANCES. is in question. It is not necessary to prove the marriage strictly ; evidence of cohabitation and reputation will be sufficient (a). The marriage need not be canonical {b). As to seisin. To entitle the widow to dower at law the husband must have been seised during the coverture ; and seisin in law is sufficient (c). If the legal estate rests in the husband but for a moment the dower attaches and cannot be got rid of except by a release. And so, where a conveyance is made and a mortgage taken back imme- diately to secure -purchase money, the dower of the pur- chaser's wife will attach (d). But the seisin of a grantee to uses will not entitle his wife to dower (e). The husband must be seised of an estate of inheritance of such a nature that the issue of the wife might inherit. Thus if land be conveyed to A. and the heirs of his body by his wife Jane, and Jane dies, and A. marries again, his second wife is not dowable of this land, for her issue could never inherit it (/). Where the husband has been disseised before coverture of land out of which his widow would be dowable if he recovered possession and so continues until his death, his widow will be entitled to dower if she sues for it within the period during which her husband could have enforced his right of action (g). But if the husband is disseised during coverture the wife's right to dower is not affected. She occupies the same position as if her husband had conveyed without a bar of dower (h). (a) Phipps V. Moore, 5 U. C. R. 16 ; Graham v. Law, 7 C. P. 310 ; Beatty V. Beatty, 17 C. P. 484 ; Losee v. Murray, 24 U. C. R. 586 ; and eee ante p. 110. (6) Re Murray Canal, 6 Ont. R. 685. (c) Leith & Sm. 141. (d) Potts V. Meyers, 14 U. C. R. 499 ; Norton v. Smith, 20 U. C. R. 213. {e) Leith & Sm. 143. (/) Cam. Dow. Chap. VIII. (g) R. S. O. cap. 126, sec. 2. (h) McDonald v. McMillan, 23 U. C. R. 302. DOWER. 143 Where the land of which the husband is seised is, at the time of alienation by him or at the time of his death, if he died seised, in a state of nature and unimproved by clear- ing, fencing or otherwise for the purpose of cultivation or occupation, the widow is not entitled to dower therein (i). Very strict evidence of the wild state of the Innd should be called for in a case of the kind, for the dowress is a favourite in law. Cutting down timber for sale only would seem not to be within the Act ; but any work done with a view to cultivation or occupation, however insignificant, would give the wife a right to dower, her title depending upon principle and not upon degree. ■ .i»* The widow of a joint tenant has no dower in her husband's estate, for by the operation of the conveyance ths whole estate vests in the survivor on his death and does not descend (;) ; but the widow of a tenant in common is dowable, for her husband's estate does not survive but devolves upon his representatives at his death (k). If the husband's estate be a remainder or reversion in fee dependent upon a life estate, his widow is not entitled to dower if he alien or die pending the life estate ; for the seisin of the freehold is in the life tenant {I). But if a remainder or reversion be dependent on a term of years, the widow of the remainderman or reversioner is dowable, because the possession of the tenant is '.^he seisin of the remainderman or reversioner (m). If the husband makes a contract for sale of his land before marriage his widow is not dowable though he die before conveyance (n). ; (i) E. S. O. cap. 126, sej. 3. U) Haskilly. Fraser, 12 C. P. 383. {k) Ham v. Ham, 14 U. C. R. 497. {I) Gumming v. Alguire, 12 U. C. R. 330 ; Piilker v. Evans, 13 U. C. R. 546 ; Leitch v. McLellan, 2 Ont. R. 587. (m) Leith & Sm. 142. (n) Gordon v. Gordon, 10 Gr. 466. 144 INCUMBRANCES. Where lands are bought with partnership moneys, either for the purposes of the partnership, or for speculation by the partners, even though the buying ar d selling of land be not within the scope of the partnership business, the wives of the partners are not dowable (o). Where the husband's estate was an equitable one the wife, at common law, was not dowable, because the seisin was in the trustee or other person having the legal estate. And so where a man mortgaged land and then married, or where he mortgaged after marriage with bar of dower his wife was not dowable because he had an equitable estate only (p). But now by statute " when a husband dies beneficially entitled to any land for an interest which does not entitle his wife to dower out of the same at law, and such interest, whether wholly equitable or partly legal and partly equitable, is an estate of inheritance in posses- sion, or equal to an estate of inheritance in possession (other than an estate in joint tenancy), then his widow shall be entitled in equity to dower out of the same land"(^). ' "' ' ■" '" '^^^ ^ ' Tho widow's right to dower does not arise under this Act unlesM the husband dies entililed ; and so where the husband's estate is an equitable one he may convey with- out joining his wife to bar dower. For instance, if be makes a contract for the purchase of land he is equitably entitled to the land in fee simple, but his wiie will not be entitled to dower unless he dies so entitled (r) ; and conse- quently he may assign his right under the contract free from any claim by her (s). '^^ ' By a recent statute (t), " no bar of dower contained in (o) Re Music Hall Block, 8 Ont. R. 225. (p) Snuirt V. Soremon, 9 Ont. 640 ; Re Music Hall Block, 8 Ont. R. 225. (g) R. 8. O. cap. 12fi, sec. 1. (r) Craig v. Temp^eton, 8 Gr. 483 ; Re Robertson, 25 Gr. 486. («) As to convevR,nces to uses to bar dower, see Leith & Sm. 142, 146, 161. (t) 42 Vict. cap. 2i J2. DO^VER. 145 any mortgage or other instrument intended to have the effect of a mortgage or other security upon real estate shall operate to bar such dower to any greater extent than shall be necessary to give full effect to the rights of the mort- gagee or grantee under such instrument." This Act relates only to mortgages made after it was passed (w). The result is that where a mortgage with bar of dower has been made before the Act and is still subsisting the husband may alien the land and the wife will be bound though she does not join to bar dower. And since the Act, it is apprehended that if a man before marriage mortgages his land, he may after marriage, the mortgage still subsist- ing, alien in the same way. By the second section of this Act it is declared that in the event of a sale of the mort- gaged land under the power of sale in the mortgage or under any legal process the wife is to be entitled to dower in any surplus. It has been held that this enactment does not apply to voluntary alienation of the equity of redemp- tion by the husband, and that in such cases she is not entitled to dower, and is therefore not a necessary party to the conveyance (v). When land is sold by a sheriff under an execution against the husband the wife's dower is not barred {w), but a sale for taxes operates as an extinguishment of every claim and deprives the widow of dower (r). Before the 11th of May, 1839, it was necessary to render a bar of dower effectual that the wife should be examined apart from her husband as to her consent, and a certificate of the examination and consent endorsed upon the deed (y). But since that date and before the Married If" omens Pro- perty Act, 188i, a married woman might bar her dower in (m) Martindale v. Clarkson, 6 App. R. 1. {v) Calvert v. Black, 8 P. R. 255. (w) Wclker v. Powers, R. & J. Dig. 1125. (x) Tomlinson Hill, 5 Gr. 231. (y) See R. S. O. cap. 126, sec. 11. A.T.— 10 146 INCUMBRANCES, any lands by joining with her husband in a deed in which a release of dower was contained (z). If the wife executes a deed by which her husband conveys land which contains a release of dower it is sufficient to bar her dower though she is not named in the deed as a formal party (a) ; but the mere signing and sealing of a deed which does not contain a release of dower will not divest her of her right to dower (6). ^ . ■ < By the Act respecting dower (c) it was enacted that a married woman might bar her dower by a deed to which her husband was not a party. It was required, however, to be made in conformity with The Married . Woman s Real Estate Act (d) in order to be effectual. The latter Act required the husband to be a party to the deed. This in- consistency has been removed by a repeal of that part of the latter Act which required the husband to join, and that part of the former Act which required the deed to be in accordance with The Married Woman's Real Estate Act (e). And a married woman nay now bar her dower by a deed containing a release to which her husband is not a party (/). Dower will bo barrea if no action be brought within ten years from the death o" the husband of the dowress, not- withstanding aiiy diiability (//). ./ ; • The Devolution of Estates Act, 1886, section 4, sub- section 2, declares that nothing in the Act shall be con- strued to take away a widow's right to dower. But she may elect to take one third absolutely in the undisposed of realty of her husband in lieu of all dower (/<). (z) E. S. O. cap. 126, sec. 5 ; Hill v. Greenwood, 23 U. C. R. 404. (a) Bonter v. Northcote, 20 C P. 76. {h) Cam. Dow. 395 ; and see Thompson v. Thompson, 2 Ch. Ch. 211. (c) R. S. (). cap. 126, sec. 6. (d) R. S. O. cap. 127. ■ {e) 47 Vict. cap. 19, sec. 22. ( f) See Ee Coulter d; Smith, 8 Ont R. 536; Bryson v. 0. <£.- Q. B. W. Co., 8 Out. R. 380. •• {;/) R. S. O. cap. 108, sec. 25. See ante, p. 108. Ui) Be Beddam, 7 C. L. T. Occ. N. 19. TENANCY BY THE CURTESY. 147 10. Tenancy hy the Curtesy. Tenant by the curtesy of England is where a man marries a woman seised of an estate of inheritance, that is, of lands in fee-simple or fee-tail ; and has by her issue born alive, which is capable of inheriting her estate. In this case he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England (i). There are four requisites, aamely, marriage, seisin of the wife, issue, and death of the wife. The marriage must be legal, but need not be canonical ( j). The seisin of the wife must be an actual seisin or pos- session, and not a seisin in law ; but where the wife's title originates in a deed or record, and not in descent, seisin in fact will be presumed until the contrary be shown ; and where her title is by letters patent they of themselves constitute seisin in fact {k). ._, . . The issue must be born alive during the lifetime of the mother. And it must be capable of inheriting the mother's estate. So, if a woman be tenant in tail male, and has issue a female, the husband is not thereby entitled to be tenant by the curtesy (Z). By the birth of issue the hus- • band becomes tenant by the curtesy initiate, and on his wife's death his estate is consummate. The husband's right to this estate was expressly pre- served by the first of our Acts respecting the property of married women (m), which took effect on the 4th May, 1859, and enabled married women to have hold and enjoy ' their real and personal property free from the debts and (0 Leith & Sm. 136. (./) lie Murray Canal, 6 Ont. R. 685. {k) Weaver v. Burgess, 22 C. P. 104. (/) Leitb & Sm. 137, 138. {ill) C. S. U. C. cap. 73, sees. 4, 16. 148 INCUMBRANCES. control of their husbands. It was held, moreover, that the estate of a married woman under this Act was not separate estate in the sense that she could dispose of it without her husband's consent (n). And she did not acquire the power to contract to any greater extent than she was able to contract before the Act (o) ; nor was any change made in the law of conveyance by married women (p). By the Act respecting the conveyance of real estate by married women (q) it was necessary that her husband should join in her conveyance as a grantor (r) and that she should submit to examination as to her consent to the disposal of her property. In 1871 an amendment was made as to the mode of execution, but the joinder of the husband was retained as essential to the validity of the con- veyance («). At this period, then, a married woman could hold her property free from the debts and control of her husband, but she could not make a valid conveyance with- out his assent ; and he was a necessary party to the con- veyance also for the purpose of conveying his own interest in the land. The Married Women's Property Acty 1872 {t), was then passed, by which it was enacted as follows : — *' After the passing of this Act, tk*^ . aal estate of any married woman, which is owned by L'y: at tho time of her marriage, or acquired in any manner during her coverture, and the rents, issues and profits thereof respectively, shall without prejudice and subject to the trusts of any settlement affecting the same, be held and enjoyed by her for her separate use, free from any estate or claim of her husband (n) Royal Can. Bank v. Mitchell, 14 Gr. 412 ; Chamberlain v. McDonald, 14 Gr. 447. (o) Kraemer v. Gltss, 10 C. P. 470. (p) Emrick v. Sullivan, 25 U. C. R. 105. (q) C. S. U. C. cap. 85. (r) Ogden v. McArthur, 36 U. C. R. 246. {») 34 Vict. cap. 24. {t) 35 Vict. cap. 16. TENANCY BY THE CURTESY. 149 during her lifetime, or as tenant l>y the curtesy, and her receipts alone shall be a discharge for any rents, issues and profits ; and any married woman shall be liable on any contract made by her respecting her real estate, as if she vf ere a, feme sole.'' Shortly after the passing of this Act, a state of facts arose which brought beiore the Court of Appeal the question whether the husband of a woman, who was married before the Act, but acquired land and died after the Act was passed, was entitled to an estate by the curtesy in the land. The Court held that the married woman's real property under this Act had all the qualities of separate estate, including the jus disponendi ; that the wife might either by instrument inter vivos, or by will, dispose of her real property without the consent or concurrence of her husband ; but that, if she did not effect a disposition of her property, but left it to devolve according to law, the husband would be entitled to an estate by the curtesy therein (u). At this time the Act requiring the concur- rence of the husband in a conveyance of the wife's pro- perty was unrepealed ; but it was determined in the same case that the Act of 1872 made the wife's property separate estate in the largest sense of that term, and that there was annexed thereto the inseparable right of alienation without the consent of the husband. In 1873 an Act was passed {v) v/hich declared that any married woman of full age might convey her real estate by deed, but no deed was to be valid unless her husband was a party to and executed the deed. In Furness v. Mitchell the opinion was expressed that this Act applied only to those women who were not within the operation of the Act of 1872 {w), that is those who acquired property under the Consolidated Statute. (u) Furness v. Mitchell, 3 App. R. 510. (v) 36 Vict. cap. 17. {w) Per Burton, J.A., 3 App. R. at pp. 522, 523 ; and see per Moss, C.J., at p. 517. 150 INCUMBRANCES. The result of the legislation at this period was that a married woman who had acquired land before the Act of 1872 took it subject to her husband's estate by the curtesy ; but if she acquired it after the Act of 1872, she took it as- separate estate, and her husband became entitled to an estate by the curtesy ouly in case she died without having disposed of it by instrument inter vivos or by will. In 1877 an amendment was made to section one of the Act of 1872 (x), which was embodied in the Revised Statute- iy), and declared that nothing in the Act contained should prejudice the right of the husband as tenant by the curtesy in any real estate of the wife which she had not disposed of inter vivos or by will. And by the same Act (z) it was, declared, repeating the enactment of 1872, that any married woman should be liable on any contract made by her respect- ing her real estate, as if she were Q>feme sole. Though the construction of section 4 of the Revised Statute is determined by Farness v. Mitchell, which is forti- fied by the words added by the amendment of 1877, it is to be observed that a very important alteration was made as to its. application ; tor, while the Act of 1872 applied to women married at any time, the Revised Statute restricts the operation of the clause in question to women married after 2nd March, 1872. Those who were married before that, date, acquiring land after the coming into force of the Revised Statute, took it under the law as it existed before the Act of 1872. Those who were married after that date held their lands owned by them at the time of their mar- riage or acquired thereafter as separate estate, and the estate by the curtesy would arise only in land undisposed of by instrument inter vivos or by will. (x) 40 Vict. cap. 7, Sched. A (156). (y) R. S. O. cap. 125, sec. 4. (z) Sec. 19. TENANCY BY THE CURTESY. 151 There remains, however, a third class as to which an important question arises, namely : Women married before the Act of 1872, who acquired land after that Act, and retained it until after the Revised Statute came into force. During the period between the Act of 1872 and the Revised Statute they (on the authority of FurncHs v. Mitcltdl) held land thus acquired as separate estate ; and the question arose on the cominfi; into force of the Revised Statute, whether the third section, which applied to women married on or before 2nd March, 1872, and which was the same in effect as the Consolidated Statute, 1859, rendered their lands on that account subject to the estate by the curtesy in anv event. An affirmative answer was ";iven to this question in the case of Godfrey v. Harrison {a). In that case a woman was married in 1850 and acquired the land in question in July, 1872. In 1880 a bill was filed respect- ing the same lands ; and it was held that it was not her separate estate, and therefore that she should have sued by a next friend. This is not a satisfactory decision how- ever. The Revised Statutes, where they are not the same in effect as the Acts for which they are substituted, are prospective only, and not retrospective, in their opera- tion (/>) ; and all existing rights, titles and interests were saved (c). There should be no doubt that such a valuable right as that of a married woman with respect to her separate property, both as to the extent of her estate and her title to dispose of it, would be within these saving clauses ; but even without such saving clauses, the Act should not have been construed as retrospective with the effect of disturbing vested rights (d). It is therefore submitted that a woman married before the Act of 1872, who acquired land after that Act, and retained it until after (a) 8 P. R. 272. ib) 40 Vict. cap. 6, sec. 10. (c) 40 Vict. cap. 6, sec. 9. {d) On the principle followel in Furness v. Mitchell, supra. 152 INCUMBRANCES. the Revised Statute came into operation, would, notwith- standing the latter Act, still hold it as separate estate ; and consequently that the estate by the curtesy would arise only in the event of her dying without having disposed of it by instrument inter vivos or by will. ' • ' By the nineteenth section, as we nave seen, " any mar- ried woman " was made liable on any contract respecting her real estate as if she were a feme sole. Unless this section is restricted to the cases of women married after 2nd March, 1872, as by the Acts of 1872 and 1877 was apparently intended (e), and the Act requiring the joinder of the husband in his wife's conveyance (/) to those of women married on or before 2nd Afarch, 1872, an intelligent construction of the Act seems impossible. For in cases of the second class the husband being a necessary party to the conveyance and not compellable (g) to join unless a party to the contract, the wife's contract could not be enforced as that of a feme sole (h). And in cases within the first class, if the wife is liable on her contract as a feme sole the husband cannot be a necessary party to her conveyance. And the fortieth section of The Real Estate Succession Act (i) which saves the estate by the curtesy while pointing out the course of descent of real property must be similarly confined in its operation. In 1884 an Act was passed respecting the property of married women, which came into force on the 1st July, 1881 (j). It repealed the Revised Statute respecting the property of married women (k), and |)rovided that the (<•) 35 Vict. cap. 16, sec. 1 ; 40 Vict. cap. 7, Sched. A (156). (/) R. S. O. cap. 127, sec. 3. (g) See Furness v. Mitchell, 3 App. R. at p. 517. Proudfoot, V.C., in Boustead v. Whitmore, 22 Gr. at p. 229, thought that if necessary the husband might be compelled to join, though his doing so under such circumstances would be an inane formality. {h) Furness v. Mitchell, 3 App. R. at p. 517. H) R. S. O. cap. 105. ( j) 47 Vict. cap. 19. (k) R. S. O. cap. 125. TENANCY BY THE CURTESY. 153 repeal should not affect any act done or right acquired while the Act was in force, or any right or liability of any husband or wife married before the commencement of the Act, to sue or be sued under the provisions of the repealed Act, in respect of rights and liabilities which accrued before the commencement of the Act. It also repealed that part of section three of the Revised Act which required the joinder of the husband in his wife's conveyance of her real estate, and other sections, and made her property separate estate. The reason for the decision in Furuess v. Mitchell applies to the construction of this Act as well as to that of 1872, which gave to the wife's property the quality of separate estate, and so enabled her to dispose of it without her hus- band's consent and free from any estate of his. The words of Jessell, M. R., in Cooper v. Macdonald (l), are very apposite in dealing with this Act. *' A gift of a fee simple estate or a gift of a capital sum of money to the separate use of a married woman gives her the same power of alienation over it as if she were a single woman. She is entitled to dispose of it as if she were not a married woman at all, and that at once gets rid of any notion of the husband having an interest. Whatever interest he w^ould have had in the absence of disposition is got rid of by the disposition." We may therefore come to the same conclusion with reepect to this Act as was arrived at with respect to the Act of 1872, namely, that the wife may dispose of her real pro- perty by instrument inter vivos or by will, without her hus- band's consent, and so may deprive him of his interest therein ; but if she dies intestate he will be entitled to an estate by the curtesy, unless her legal personal representa- tive succeeds to her real property under the nineteenth section. If she makes a contract for sale of her land, it may be enforced against her, or she may enforce it, as if she were a feme sole; and it must be conceded that if she has power (l) L. E. 7 Ch. D. at p. 293. 154 ,i INCUMBRANCES. -^ ? i to enforce such a contract against a purchaser, she must have power to convey to him an unincumbered fee simple, for he could not be compelled to take her land subject to an estate by the curtesy (?«). By the nineteenth section it is declared that for the purposes of the Act a married woman's legal personal representative ** shall, in respect of her separate estate, have the same rights and liabilities and be subject to the same jurisdiction as she would be if she were living " (n). Since the legal personal representative is here mentioned, it is doubtful whether it was intended that her real pro- perty on her intestacy should in all cases descend free from any estate of her husband (o). . - In order to give full effect to this section, and clothe the personal representative with all the rights and liabilities of the married woman, it seems to be necessary to accord to him the right to hold and dispose of her real property, make contracts respecting it, and sue and be sued apart from her husband — in short to deal in all respects with the land as if it had belonged to a feme sole. This would plainly deprive the husband of his estate by the curtesy even on an intestacy. By the Trustees and Executors' Act (p) where the owner of land dies under a liability to convey in pursuance of a written contract, either intestate or without having made any provision by will for a conveyance, his personal repre- sentative is the proper person to convey. This enactment is wide enough to include the case of a married woman dying under such a liability ; and reading the nineteenth section of the Act of 1884 with the Kevised Statute there seems to be no doubt that under such circum dances, a con- veyance would be made free from any estate of the husband. (m) And see R. S. O. cap. 107, sec. 6. (h) 47 Vict. cap. 19, sec. 19. (o) Lennard on position of married women, 107. (2>) R. S. O. cap. 107, sec. 25. ^ ,,,. TENANCY BY THE CURTESY. 155 With respect to the application of the Act of 1884, the second section is general in its terms, and appears to apply to any property of any married woman ; and it appears to have been so treated in Re Coulter v. Smith {q). It declares that " a married woman shall, in accordance with the provisions of this Act, be capable of acquiring, holding, and disposing by will or otherwise, of any real or personal property as her separate property, in the same manner as if she were Sifeme sole, without the intervention of a trustee." The expression, *' in c ccordance with the provisions of this Act," renders the general scope of thia section liable to be restricted by other more particular pro- visions of the Act. Section 3 declares that the property of a woman married after the Act shall be her separate estate. Section 5 declares that property acquired after this Act by women married before the Act shall be separate estate. Both of these sections refer back to section 2 for the mode of holding and disposing of the property. If then we regard the second section as stating by a general definition the rights and liabilities of such married women, and the nature of such property, as are within the Act, and the third and fifth sections as defining what married women, and what property are within the Act, ve must come to the con- clusion that the Act is not retrospective in its operation, but applies only to property acquired after the Act, or to the property of women married after the Act. This con- struction agrees with section 22, which repeals former statutes but saves rights acquired thereunder. Rights res- pecting separate estate and estates by the curtesy acquired under former Acts would therefore still subsist (r). " {>]) 8 Ont. R. 536. This decision may be supported on other f^rounds. If the remainder to the marked woman vested before 1877, she would have had the right to convey alone on the authority of Fnrnesa v. Mitchell, Bupra, assuming that the Revised Statute did not interfere with her vested rif,'ht. (r) See Scott v. Wi/e, IX P. R. 93, following Turnbiill v. Forinan, L. R. loQ. B. D. 284. , , . 156 INCUMBRANCES. Since the passing of the Devolution of Estates Act, 1886, i;he real estate of a married woman upon her death devolves upon her personal representative whether she disposes of it by will or dies intestate. If she disposes of it by will, it appears, as we have seen, that she deprives her husband of his estate. ' ' '^ ' In the case of a married woman djdng intestate after the first of July, 1886, there is a doubt, notwithstanding the Act, whether her husband may not lake an estate by the curtesy in her separate estate. The Act applies to " the estates of persons dying on or after " the first of July, 1886 (s). By section five, " tbe real and personal property of a married woman in respect of which she has died intestate shall be distributed as follows : cne- third to her husband if she leave issue, and one-half if she leave none ; and subject thereto, shall go and devolve as if her husband had pre-deceased her.'' There is a very evident intention to abolish tenancy by the curtesy displayed in these two sections, and to treat all property as one common fund subject to distribution by the administrator, in the course of which the husband gets an appreciable share. And such probably would have been the interpretation of the Act but for section four, sub-section three, which seems to limit the scope of section five to cases in which the hus- band has not elected. By that clause it is enacted that "**any husband who, if this Act had not passed, would be entitled to an interest as tenant by the curtesy in any real estate of his wife, may * * elect to take such interest, &c." If the Act had not been passed, it seems that all property acquired under the Act of 1859 would have been exnressly subject to curtesy; and all property acquired under tLv) Aot of 1872 and perhaps that of 1884 would have been subject to the estate by the curtesy if the wife died intestate. And so in all these these cases the husband a*pparently may still elect to take his estate by the curtesy (s) Sec. 2. - - . EASEMENTS. 157 and forego all further interest under the Act ; but if he doe? not elect within six months after his wife's death as required by the Act, then the administrator takes absolutely and the husband takes his share from him in the course of dis- tribution under the Act. Where the wife's estate is an equitable fee the husband will be entitled to be tenant by the curtesy under the same circumstances as would entitle him in case the estate were a legal one {t). But where land is settled upon trustees for the separate use of a wife, she has the right of disposing of it without her husband's consent, and he will be entitled to an estate by the curtesy only when she dies without, having disposed of her estate by instrument inter vivos or by will (m). This is still of importance, for property in settlement was not affected in that respect by the Acts which have been referred to. 11. Easements. Enquiry should be made whether the land is subject to- any easements ; for an easement maj be acquired as against the registered title and a purchaser would take subject thereto. It is not strictly speaking an incumbrance, though its existence may depreciate the value of the property. An easement is defined as a privilege without profit which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person, by reason whereof the latter is obliged to suffer or refra'.n from doing something on his own tenement for the advantage of the former (v). It must be distinguished from a profit a prendre, which is a right by wh:*ch one per- son is entitled to remove and appropriate any part of the soil belonging to another man, or anything growing in or attached to or subsisting upon his land for the purpose of (f)Leith 6c Sm. 138. (u) Cooper v. Macdonald, L. K. 7 Ch. D. 288. . . __ . ... (v) Godd. 2. 158 INCUMBRANCES. the profit to be gained from the property thereby acquired in the thing removed ; and from a natural right, as the right to pure air, support of land, etc. ; and from a license. The right to the free and uninterrupted passage of air may be acquired as the right to the free passage of light might have been before the statute taking away the latter right. Enquiry should be made as to whether the land is subject to any such easement. The right to pure and unpol- luted air is a natural right, which may be lost by some person acquiring a right to pollute the air which is an ease- ment. Ordinary observation will in general detect circum- stances which may give rise to the suspicion that such an easement may exist. The right to the enjoyment of the free passage of light has been destroyed by statute (iv) in so far as the claim might arise by prescription. By that Act it is declared that '' no person shall hereafter acquire a right by prescription to the access and use of light to or for any dwelling house, workshop or other building ; and the thirty-sixth section of the Real Property Limitation Act is hereby repealed ; but this section shall not apply to any such right which has been already acquired by twenty years' use before the passing of this Act." The circumstances attending the existence of such an easement may easily be discovered from observation, and full enquiry should be made as to the existence of any such right. The right to enjoy the free access of light may, however, arise by implied grant on the severance of a tenement by conveyance of one portion having buildings thereon. Thus where the owner of a piece of land upon a portion of which buildings are erected conveys the latter portion, then if the windows of the buildings overlook the remaining portion of the land, neither the grantor nor those claiming under him can derogate from his grant by building on the vacant (rv) 43 Vict. cap. 14, sec. 1. EASEMENTS. 159 land so as to obstruct the windows (x). But if the grantor desires to reserve B,ny rights over the portion granted they must be expressly reserved and will not arise by implica- tion. So, if the vacant portion of the land were grauted first the purchaser would have the right to build so as to obstruct the lights of the building (y). And wher3the con- veyances of the land with the buildnigs thereon and the vacant land are contemporaneous, either purchaser being aware of the conveyance to the other, the purchaser of the land is not entitled to build so as to obstruct the lights of the house (z). Every owner of land has a natural right to sufficient support for his land from the subjacent and adjacent soil ((/), and this right continues though buildings may be erected on the land (b). And after twenty years' uninter- rupted enjoyment the right of support for the weight of the soil increased by the weight of buiMings may be acquired, if the enjoyment is peaceable and without deception or concealment, and so open that it must be known that some support is being enjoyed by the buildings (c). There are three kinds of rights which may be acquired in connection with water : — 1. Rights relating to the flow of water. 2. Rights relating to the purity of water. 3. Rights relating to the taking of water for use. Of these the first two are natural rights, which may be altered or destroyed by the acquisition of easements. The right to take or use water for turning a mill, or to pen it back so as to cause it to overflow the land of other owners are rights which may be acquired by user. The right to take water for consump- (x) Carter Y. Grasett, 11 Ont. E. 331. '' ' " /'^v ^^-i (y) Wheeldo'i v. Borrows, 'L.B. 12 Ch.D. 31. {z) Alh'n V. Taylor, L. R. 16 Ch. D. 355. (a) See Snarr y. Granite, etc., Co., 1 Ont. R. 102, as to providing artificial support. (b) Broicn v. llobins. 4 H. tfc N. 18G ; Stroyan v. Knowhs, G H. & N. 454. (c) Dalt m V. Awjus, L. R. G Ai,). Ca. 740. 160 INCUMBRANCES. • tion as it flows towards another's land is a natural ease- ment. The right to go on another's land and take water collected thereon is an easement (d). The right which one landowner has to pass over the soil of another person for the purpose of going to or from his estate is a right of way. And this right may be a limited one, for instance to pass upon foot only, or \ ith horses only, or for a particular purpose only, or it may be general («). Such a way may be acquired either by express grant or by user. In addition to rights of way acquired by user and by express grant there are certain rights of way which arise by implied grant. For instance if a map or plan be exhib- ited as one of the particulars of sale, a purchaser buying according to the plan acquires such an interest in the streets or lanes shown upon the plan as to place them beyond the vendor's control to the injury of the pur- chaser (/). And 30 the vendor or any one claiming under him would be restrained from building upon a street to the injury of a purchaser (g). And where a vendor sold and conveyed a portion of his land on which were two houses, and one of the courses extended '* to a lane produced six feet wide, then south * * along the said lane, etc." (the lane being on the vendor's land, and being used as a means of access to the houses conveyed and so represented to the purchaser), it was held that the vendor, or any one claiming under him, could not interfere with the lane to the injury of the purchaser (h). But where the grantor does no more than express an intention to lay out a way be is at liberty to alter his intention as long as he does no damage. So, where a lease was made of premises abutting , (d) See Godd. 79-96. , :/!I^ . y I^ (e) Godd. 104. « ; -: 3! (/) Re Morton d' St. Thomas, 6 App. K. 323. (g) Rossin v. Walker, 6 Gr. 619 ; Espley v. WUke$, L. R. 7 Ex. 298. (h) Adams v. Loughman, 39 U. C. R. 247. EASEMENTS, f 161 on " an intended way of thirty feet wide," no road being set out at that time, it was held that the lessee could only claim a convenient way, though for several years after the lease a road thirty feet wide had been in fact used. The declaration of an intention does not amount to an implied grant {i). But where land is sold according to a plan upon which streets and lanes are shown, each purchaser does not acquire an easement in all the streets and lanes, but only in those abutting on his land and necessary for the material enjoyment of his property, unless he expressly stipulates for the right to use others (j). '•• When the plan is a registered one the relative rights of vendor and purchaser are not thereby altered (k). A registered plan is not binding on the person registering it until a sale has been made according to it, and it then becomes binding on the vendor and can not be altered by him without the order of a judge (l). , • A way of necessity is where a man grants a piece of land which is surrounded by other lands of his, so that the grantee cannot reach his land without going over the sur- rounding land, then he has a way of necessity over the surro mding land to and from the land-locked parcel. It exists only when a grant can be implied (?w), and arises only upon a grant of the legal estate (n). There must be an actual necessity for such a way, for convenience only will not confer the right (o) ; nor will the right arise where the (i) Harding y. Wihon, 2 B. & C.^Q. ■■'-'-' ' > {j) Carey v. City of Toronto, 11 App. R. 410, affirmed by the Supreme Court on other grounds, though three Judges of the Court agreed with this view : Cass. Dig. 481. , ,, „ . {k) Re Morton d- St. Thomas, (5 App. R. 323. (I) R. S. O. cap. Ill, sec. 84. See Re Chisholm d; OakvUle, 9 Ont. R. •274 ; 12 App. R. 225 ; and R. S. O. cap. 146, sec. 72. (m) Holmes V. Goring, 2 Bing. 7 &. > r; , ■.. v, :u v . {n) Saylor v. Cooper, 2 Ont. R. 398 ; 8 App. R. 707. (o) City of Hamilton v. Morrinon, 18 C. P. at p. 224 ; Holmes v. Goring, 2 Bing. "76 ; Dodd v. Burchell. 1 H. & C. 113 ; Pheysetf v. Vicari^, 16 M. * W. 484. -;- A.T. — 11 -:,- -- - -,:•.-.-- ;„..-..../.....:":-::_. :_:■.._... ..^. 162 INCUMBRANCES. necessity is created by the grantee's own act, as v here he builds his house so that he requires to go across another's land in order to get to the highway (p). Where a grantee is entitled to a way of necessity over the grantor's land the latter has the right to select the 'way {q) ; but it need not be the most convenient one for the grantee (r), though a reasonably convenient one should be assigned to him (s) ; and if the grantor does not select a way the grantee may do so (i). i ^ The right to such a way is co-extensive with the necessity and exercisable only while the necessity exists ; and so, when the owner of the dominant tenement acquires the means of passing to the highway without using the way, the necessity for the way being gone the right ceases with it (u). It is said that the way must be suitable for the purposes of the person requiring it at the time it is created (r). When the owner of a close grants the surrounding land, so that he must go across some portion of it in order to arrive at his close, then, though he creates the necessity by his own act, it has been held that he is entitled to a way of necessity by implied reservation (iv). Tho modern authorities are founded upon cases {x) which contain mere (p) Roberts v. Karr, 1 Taunt, at p. 498 ; Barlow v. Rhodes, 3 Tyr. at p. 284, where Ba,yley, B., in answer to the argument that there was a way of necessity, said the defendant might make a way by breaking througla his wall. {q)Bolton v. Bolton, L. R. 11 Ch. D. 968. ^ ^ ^, -^ i^ (r) Pheysey v. Vicary, 16 M. & W. at p. 496. (s) Fielder v. Bannister, 8 Gr. 257. . ,. -: it) Fielder v. Bannister, 8 Gr. at p. 261, citing Packer v. Walsted, 2. Sid. 111. (u) Holmes v. Goring, 2 Bing. 76. {v) Gayford v. Moffatt, L.R. 4 Ch. App. 133. {w) Holmes v. Goring, 2 Bing. 76 ; Davis v. Sear, L. E. 7 Eq. 427 ; City of London v. Riggs, L. R. 13 Ch. D. 798 ; Turnhull v. Merriam, 14 U. C. R. 265. (x) Clarke v. Cogge, Cro. Jac. 170 ; Staple v. Heydon, 6 Mod. 1 ; Chich- ester V. Lethbridge, Willes 72, 73. EASEMENTS. 163 dicta in support of the right and which have been sharply criticised by Serjeant Williams in his note to Pom/ret v. Ricroft (y). " As if," says the learned Serjeant, " a self- created necessity could be, either in law or reason, any justification of a trespass committed on another's land." Pinnington v. Galland {z), which professes to follow Serjeant Williams as an authorit} does not observe that he disap- proves of the doctrine entirely. And in Wheeldon v. Bur- rows the latter case is citerl with approval as being founded on Serjeant Williams' note. The existence of the right is certainly opposed to the doctrine that a man may not derogate from his own grant, and to the dictum of Lord Ellenborough that a man can not by his own act create a way of necessity (a). It ma}^ also be worthy of observation that a way is not, properly speaking, the subject of either an exception or a reservation ; and if it may not be expressly reserved or excepted it cannot be reserved or excepted by implication. An exception must be of a part of the subject of the grant which does not pass thereby but is severed and retained by the grantor (b) ; and a rer ervation is properly made of some- thing issuing out of the thing granted (c). If a way were expressed to be reserved or excepted the words might operate as a re-grant if the deed were executed by the grantee (d). It seems that such a way exists as incident to a grant and must be pleaded as arising out of grant {e). But if the deed is silent as to a way and is not executed by the grantee, it seems impossible* to imply a (v) 1 Wm. Sauud. 571. - ' (z)9 Ex. at p. 12. '■ :-■ ■ - *' (a) Roberts v. Karr, 1 Taunt, at p. -198. , , >, -. . ^^^ >j>r ^ (b) Touch. 77. (c) Co. Litt. 47a, 143a ; Touch. 80. ~' '" •^ (d) Wickhain v. Hawker, 7 M. & W. 63 ; Wilson v. Gilmer, 46 U. C. E- 545. {e) Pomfret v. Ricroft, 1 Wm. Saund. 570, note ; City of London v. Hi^yts, L. R. 13 Ch. D. at p. 80!). 164 INCUMBRANCES. re-grant. And if the right exists in such a case it must be based upon the bare necessity and not upon the implication that it arises by grant (/). When a way arises by impUed re-grant or reservation the grantor is limited to such a way as was necessary at the time of the grant and cannot claim a way for all purposes (g). 12. Mechanics^ Liens, The most dangerous incumbrances are Mechanics' Liens, for they arise in favour of the lien-holders by virtue of their being employed upon the work of building, or furnish ing mate- rial, and they exist for thirty days after the completion of the work or the furnishing of the materials without regis- tration. Unless he signs an agreement to the contrary every mechanic, machinist, builder (/t), miner, labourer, con- tractor, or other person doing work upon, or furnishing materials to be used in the construction, alteration or repair of any building or erection, or erecting, furnishing or placing machinery of any kind in, upon or in connection with any building, erection or mine, shall, hy virtue of being 80 employed or furnishing, have a lieu or charge for the price of such work, machinery or materials, upon such building, erection or mine and the lands occupied thereby or enjoyed therewith, and limited in amount to such sum as is justly due to the person entitled to such lien (i). All persons, also, who perform labour for wages are entitled to a lien for thirty days' wages, notwithstanding any agree- ment between the owner and contractor for excluding the lien (j). The lien exists for thirty days after the work has been completed or the materials furnished, and then expires (/) Pomfret v. Ricroft, 1 Wm. Saund. 573, note. (g) City of London v. Riggs, L. R. 13 Ch. D. 798. (h) This includes an architect: Arnoldi v. Gouin, 22 Gr. 314. (i) R. S. O. cap. 120, sec. 3 ; 47 Vict, cap 18, sec. 1. (.;■) 45 Vict. cap. 15, sec. 1. MECHANICS LIENS. 165 unless registered in accordance with the Act, or unless proceedings are taken to assert the lien and a certificate of lis pendens is registered {k). And if the lien is registered, it expires at the end of ninety days after the work has been completed or the material furnished, or the expiry of the period of credit, unless proceedings are taken to realize it, and a certificate of lis pendens is registered (0- As soon as the lien is registered the lien-holder is to be deemed a purchaser pro tanto and within the provisions of the Registry Act (w) ; but the provisions of the Registry Act are not otherwise to apply (»). The authorities are not in accord as to the effect of this legislation. In several cases it has been determined that the lien-holder, who has the option of registering his lien either before or during the progress of the work, must do so in order to preserve his priority over a purchaser or mort- gagee who takes after the work commences, and therefore ;\fter the lien attaches (o). And it must be admitted that the weight of authority is now in favour of that construc- tion. Osier, J.A., in delivering the judgment of the Court of Appeal in McVean v. Tiffin, said, " These clauses appear to me to indicate very plainly that, although as between owner and contractor, the lien may by force of section 3 exist from the time of the commencement of the work, yet that if the latter desires to preserve his position and estab- lish a priority over subsequent purchasers or mortgagees, he must register his lien, which the Act enables him to do even before the commencement of his work. There is otherwise, as it seenir 'o me, no force in the declaration that on registration oi' his claim the lien-holder shall be {k) R. S. O. cap. 120, sec. 20; Neill v. Carroll, 28 Gr. 30, 339. (l) R. S. O. cap. 120, sec 21. ■■■■ - ' - - (w) Sec. 4, sub. -sec. 3. ; - - ji*^ l (n) Sec. 26 ; Makins v. Robinson, 6 Ont. R. 1 ; Per Proudfoot, V.C., Hynes v. Smith, 27 Gr. at p. 153. (o) Hynes v. Smith, 8 P. R. 73; 27 Gr. 150; McVean v. Tiffin, 13 App. R. 1. 166 INCUMBRANCES. deemed a purchaser pro tanto. Eegistration serves two purposes, one to maintain the lien-holder's priority, and the other to extend the time within which he may take proceedings to realize his claim. If the latter was the only object to be served by it, the provision as to the effect of registration in making him a purchaser pro tanto would be useless, since in that case the lien, so long as it was sued for within the limited time, would always be paramount to jiny interest arising after it came into existence." With respect to a mortgage created after the commence- ment of the work, it may inferentially, though not expressly, take priority over liens under section seven of the Act, which interferes to some extent with the priority of mort- gages existing befor? the commencement of the work. And a mortgagee who advances money on the security of the land and buildings to be erected, and whose money goes to pay for the buildings, has some equity to take priority over lien- holders. But with respect to a purchaser the authorities cited are open to much criticism. The effect of the line of decisions referred to is to make the lien-holder a purchaser from the moment of his employment, and thenceforward to place him in competition with other purchasers under the Regis- try Act ; whereas the Mechanics' Lien Act declares him to be a purchaser, and within the Registry Act, only upon registration of his lien, the application of the Registry Act being theretofore excluded by the twenty-sixth section of the Mechanics' Lien Act. Sufficient stress does not appear to have been laid upon the fact that the proceeding to en- force a Mechanic's Lien is a proceeding in rem. The lien attaches upon the land by virtue of the employment of th^ mechanic, and binds not only the estate of the owner bui also the estate of any person claiming under him, whose rights were acquired after the work was commenced {p). Until the lien is registered the provisions of the Registry (p) K. S. O. cap. 120, sec. 2, s.-s. 3, and Eec. 6. MECHANICS LIENS. 167 Act do not apply (5), but upon registration the lien -holder becomes a purchaser pro tanto and is within the Kegistry Act (r). He is not bound to register within the thirty days in order to preserve his lien, but may commence an action within the prescribed time and charge the land in the hands of the owner or any one claiming under him who took after the commencement of the work. His position with respect to registering seems to be analogous to that of a purchaser at a sheriff's or a treasurer's sale, who has a limited time within which to register in order to preserve his priority, and who cannot be defeated or pot^tponed by a purchaser from the owner registering a conveyance within the limited time (s) ; or to that of a devisee who may register at any time within a year. When land is subject to a mortgage which existed before the commencement of the work, the mortgage does not take priority over the lien to any greater extent than the sum by which the selling value of the land with such work, exceeds the sum by which such selling valae has been actually in- creased by the improvements. But where the land is mortgaged after the commencement of the work, we have seen that it takes priority over the liens ; and the mort- gagee can make a good title to a purchaser under his power of sale (t). And where a mortgage was given to secure future advances and the advances were made after the right ol lien had arisen, but witliout knowledge thereof and before registration of the lien, it was held that the mortgage was prior to the lien to the extent of the advances (u). (q) Sec. 26. (r) Per Proudfoot, V.C., Hynes v. Smith, 27 Gr. at p. 153 ; Making v. Robinson, 6 Ont. R. 1. («) See Burnham v. Daly, 11 U. C. R. 211, where a purchaser at a sheriff's sale in 18 ■:<, who took a conveyance in 1853, was held not to be defeated by a conveyance from the owner to a third person registered in 1852. (t) Re Craig, 3 C. L. T, 501. (u) Richards v. Chamberlain, 25 Gr. 240. 168 INCUMBRANCES. Where separate buildings are erected under distinct con- tracts for the same owner, the lien-holder must register a distinct lien for each building, or if he registers one lien, must specify in it what amount he claims against each building (v). A married woman's separate property is not subject to a lien for a building procured to be erected thereon by her husbaad {w) ; but under a recent Act a lien for wages will attach upon the buildings and land of a woman whose hus- band procures the work to be done (x). Where the estate charged by the lien is leasehold, the fee simple may also becoma subject to the lien with the consent of the tenant in fee, provided that his consent is testified by his signature upon the statement of claim at the time of the registration and is duly verified (y). Where a tenant with option of purchase procured buildings to be erected on the land but did not exercise his right of pur- chase, it was held that the estate of the owner was not bound though he was aware of the fact that the work was being done, there being no agreement established against him (z), 13. Discharges of mortgages. The discharge of a mortgage is usually effected by means of the statutory certificate of discharge which operates as a reconveyance upon registration, before which it is a mere re- ceipt for the mortgage money (a). The party entitled to the equity of redemption la not obliged to accept a statutory dis- charge, however, but may require a reconveyance of the (v) Currier v. Friedrick, 22 Gr. 243. {to) Wagner v. Jefferson, 37 U. C. R. 551. {x) 45 Vict. cap. 15, sec. 3. {y) R. S. O. cap. 120, sec. 8, s.-s. 2. (z) Graham v. Williams, 9 Ont. R. 458. (a) Re Music Hall Block, 8 Ont. R. 225 ; Trust db L. Co. v. Gallagher, 8 P. R. 97. DISCHARGES OF MORTGAGES. 169 mortgaged premises with a covenant against incumbrances by the mortgagee (b). Since the Ist July, 1886, the mortgagor may on redeem- ing require the mortgagee to assign to any third person, except where the mortgagee is or has been in possession (c). A mortgagor, by the interpretation clause of the Conveyanc- ing Act signifies not only the original mortgagor, but also any one deriving title under him and entitled to redeem. The Act was not intended to efifect any change in the person who was entitled to call for a reconveyance ; and it is only a person who before the Act would have been entitled to a reconveyance who may now claim an assignment. Hence, where there are successive mortgages, the mortgagee who has the first right to redeem is the one who has the right to call upon the mortgagee to assign to him upon redemp- tion ; and the mortgagor cannot require an assignment without the consent of the puisne mortgagee (d). When a mortgage in fee is made by a tenant in tail the statutory discharge upon registration operates as a re- conveyance of the land to the mortgagor barred of the entail (e). {b) McLennan v. McLean, 27 Gr. 54. (c) 49 Vict. cap. 20, sec. 7. (d) Teevan v. Smith, L. R. 20 Ch. D. 724. (e) Lawlor v. Lawlor, 10 M. C. R. 194. it^m 170 PURCHASER S RIGHT TO DEEDS. CHAPTER VIII. PURCHASER S RIGHT TO DEEDS. 1. Production. 2. Recovery after contract. 8. Custody f and covenant for production. 1. Production. Under our system of registration the production of deeds is not a matter of much moment, and the omission to insist upon their production, or perhaps even to ask for them, is not to be construed as negligence or indicative of suspicious conduct or fraud (/). The purchaser having searched the register and other pubhc offices is entitled to assume that all deeds which aie not registered, and all charges and interests which have not been similarly pro- tected, if any exist, are as against him fraudulent and void, and there is no duty cast upon him to make inquiries with a view to the discovery of unregistered interests {g). The production of the deeds has therefore become a matter of little importance. But a purchaser is, notwithstanding this, entitled to have production of all the deeds if not restricted by the contract. And upon completion of the contract he is entitled to have delivered to him (/i) all the deeds and evidence of title, except documents which have been produced as negative evidence to satisfy him that (/) Agra Bank v. Barry, L. R. 7 H. L. 135 ; Waters v. Shade. 2 Gr. at p. 464. [g] Per Lord Selborne, Agra Bank v. Barry, L. R. 7 H. L. at p. 157. {h) Sug. 433. PRODUCTION OF DEEDS. 171 they contain nothing affecting the title {i) ; and he cannot be compelled to complete his contract unless the deeds are produced or deposited in a place where he may have access to them (j). But if the vendor retains land which is held under a common title with that sold to the purchaser he may retain the deeds. In the latter case the vendor must at his own expense furnish attested copies to the pur- chaser (A;), and enter into a covenant to produce at the purchaser's expense all deeds except those which are of record. But the purchaser is not entitled to have copies of any instruments which have been produced merely to negative a possibility, and which he could not have com- pelled the vendor to produce had they not been in his possession (/). The covenant to produce extends only to those deeds which are neces^sarv to make out a marketable title (m). By the Vendor and Purchaser Act (>.) tht inability of the vendor to furnish the purchaser with a legal covenant to produce and furnish copies of documents of title, shall not be an objection to the title in case the purchaaer will on the completion of tLe contract, have an equitable right to the production of such do;3uraeni3. It was held in Harrison v. Joseph (o) that a purchaser had no right to certified copies of registered and other documents procured at the expense of the vendors for the purpose of verifying the abstract. But this decision is contrary to authority (jo). Unless they cover other land retained by the vendor it is difficult to see why they (0 Sug. 360. ij) Shore V. CcUett, Coop. 234 ; Dare v. Tucker, GVes. 460. (k) Dare v. Tucker, 6 Ves. 460 ; Boughton v, JenelL lb Ves. 17() ; Re Charles, 4 Ch. Ch. 19. {1} Dart V. & P. ;^32. (m) Cooper v. Emery, 1 Ph. 388. (n) E. S, O. cap. 109, sec. 1. s.-s. 5, (o) 8 P. R. 293. (p) See Sug. 448 ; Dart V. & P. 677 ; Re Charles, 4 Ch. Ch. 19. 172 purchaser's right to deeds. should not be delivered to the purchaser with the other evidences of title. 2. Recovery after comract. If a purchaser omits to secure all the muniments of title at the time of completing the contract, he cannot afterwards recover from the vendor documents which mav be required to establish some collateral matter; nor can he compel him to enter into a covenant to produce them, even though the purchase deed contains a covenant for further assurance (q). But if any documents which directly relate to the land and are in fact title deeds have been retained by the vendor, the purchaser may recover them, for the title deeds are things which go with the inheritance, descend with it, and pass with it; by conveyance without being named (r). And especially is this so if there has been any misrepre- sentation made by the vendor. So, where an abstract of title represented that a will had been proved, and it appeared subsequently that this was not the fact, but that the will was with the vendor, it was held that the purchaser was entitled to have it deposited with the Master in order that he might have access thereto at all times (s). 3. Custody, and covenant for production. As a general rule every owner of property for the time being is entitled to the possession or custody of the title deeds relating to the property, whether his estate be in fee simple or fee tail, or a life estate, or an estate in mort- (q) Hallett v. Middleton, 1 Rus. 243. In Fain v. Ayers, the report in 2 S. & St. 533 appears to contradictthis, butin thenoteto Hallett v. Middle- ton, it is said that the case was determined on the purchaser's equity to the deeds, not on his right under the covt-nant for further assurance. (r) Sug.433. («) Harrison v. Coppard, 2 Cox 318, explained in Hallett v. Middleton, 1 Bus. at p. 258. CUSTODY OF DEEDS. 173 gage (t). But where several persons take interests under the same deeds, and have equal interests in obtaining possession thereof and using them, the title to the deeds is ambulatory, and he who first obtains them may retain them (u). When the land is sold in different lots to various pur- chasers, he who buys the lot of the largest value is entitled to the deeds upon entering into a covenant with the other purchasers for their production (v). And the vendor must, in the absence of express stipulation, furnish the other purchasers with attested copies of the deeds at his own expense, however inconvenient or expensive it may be for him (?/')• But it was suggested in Dare v. J ticker that the originals might be left in the Master's Office for the com- mon use, or that some other proposal might be made by the vendor. When the vendor sells land with respect to which he has retained deeds and has covenanted with a former pur- chaser to produce them, he cannot retain them but may require the covenant to be endorsed upon or recited in the conveyance, and might fairly require a covenant from the purchaser to perform it (x). Covenants for production are real covenants and run with the land for the benefit of purchasers, but not for the benefit of vendors (y); in other words, purchasers from the covenantee may take advantage of them against the covenantor himself, but the liability will not extend to the covenantor's assignees (z). The covenant to produce is therefore commonly said to be lost by the holder alienating (t) Cov. Con. Ev. 135. (u) Foster v. Crabb, 12 C. B. 136. (v) Griffith V. Hatchard, 1 K. & J. 17 ; 3rd Rep. R. P. Com. 67. {w) Dare v. Tucker, 6 Ves. 460 ; Boughton v. Jewell, 15 Ves. 176. (x) Sug. 434. (y) Barclay v. Raine, 1 S. & St. 449. {z) Piatt Cov. 227. 174 PURCHASER S RIGHT TO DEEDS. the lands in respect of which he was allowed the custody of the deeds (a). This, however, is scarcely accurate. It is true that he may with the estate deliver over the deeds to a purchaser, but this does not exonerate him or his heirs from his covenant to produce the deeds. If he has neglected to take any legal obligation from the second pur- chaser to produce the deeds when he shall be called upon to do so, and cannot prevail upon him to produce them on any given occasion, then he, or his heirs, if bound, are liable to an action on the covenant to produce, and damages to the amount of the injury proved will be giv^en against him(Z;). It has been said that a covenant to produce all deeds, papers and writings generally, without a schedule, is a mere nullity (c) ; but if it can be shown that the covenantor is in possession of a document or set of documents relating to the lands, he would doubtless be held bound by his covenant {d). (a) Gov. Con. Ev. 121>. {h) Gov. Gon. Ev. 127, laO. (c) Shaw V. Shaw, 12 Pr. 103. (d) Gov. Gon. Ev. 132. DOUBTFUL TITLES. 175 CHAPTER IX. DOUBTFUL TITLES. 1. Origin of the doctrine. 2. Amount of doubt necessary. 3. Classification of douhtful titles. Lord Cliief Baron Eyre, referring to the doctrine of doubtful titles, is reported to have said, *' that though a conveyancer might have such doubts upon a title as to advise a purchaser not to accept it, yet that there could not be such a thing as a doubtful title in a Court of Justice — it must either be right or wrong, and the thickness of the medium through which the point was to be seen made no difference in the end. The Court might have some difficulty in clearing it, but, at last, the point must be taken as equally certain as if no such difficulty had existed " {e). This, however, is not the rule of the Court; as Sir William Grant, M.R., has remarked, " It has been said that every title is good or bad ; and the Court ought to know nothing of a doubtful title ; but the Court has adopted a different prin- ciple of decision " (/). The principle referred to arises out of the jurisdiction exercised by the Courts in cases of specific performance. Where specific performance of an agreement to sell land is sought, it becomes necessary, of course, to look at the vendor's title. And so, out of the principal issue in the (e) Gale v. Gale, 2 Cox, 145. (/) Sloper V. Fish, 2 V. & B. 149. 176 DOUBTFUL TITLES. case, there arises a secondary but more important one — whether the vendor can make a good title to the estate which he has agreed to sell. Upon the investigation of the title the Court is not called upon merely to decide between the respective merits of the claims of two parties contending for the possession of the land, but must enquire into the absolute merits of the title itself, in the absence of possible claimants against the vendor, and declare its validity as against all the world. This enquiry ranges over a period of at least sixty years, and matters of fact have to be inves- tigated as well as questions of law determined. The result is that the Court is either enabled to say that the title is so clear that a purchaser ought to take it, or, without declaring it to be bad, finds such a reasonable doubt upon it that it will not force it upon him. In the former case, the title is said to be marketable — in the latter, unmarketable or doubtful. 1. Origin of the doctrine. It appears to have been the practi(;e of the Court of Chancery before Lord Somers' time to entertain a suit only where the plaintiff had recovered damages at law, but this limitation of its authority was not long observed (g). It is a matter of interest, however, in tracing the origin of doubtful titles. Lord Erskine said, *' There is no doubt that this jurisdiction had its origin upon the foundation of a legal right: the law giving the title" {h). The effect of a judgment at law was to give judicial sanction to the title, and so the Court of Chancery was absolved in such cases from the duty of investigating it. Lord Somers is said to have been the first Chancellor who entertained jurisdiction where the plaintiff had not previously recovered damages (g) Fry Sp. Perf . sec. 39. (h) Hahey v. Gra7it, 13 Ves. 176. ORIOIN OF THE DOCTRINE. 177 at law (t). In consequence of the change of practice, it became necessary, as we have seen, for the Court to look at the vendor's title before compelling the purchaser to accept it. Shortly after Lord Somers' practice was established we find the first reported case, decided in 1723 by Sir Joseph Jekyll, M.R., where, " there being the opinion of learned men against the title," the Court did not think it reason- able to compel the purchaser to complete the purchase (;). Lord Thurlow followed in 1780 {k), and was said to have acted upon precedents of Lord Northington's (/), and the doctrine was repeatedly acted upon by Lord Hardwicke (m). Since that time many Judges have affirmed the principle, and it has received the sanction of the House of Lords (n). The practice of the Court of Chancery, however, was not uniform. For the Court was not always wont to let the purchaser off upon a doubtful title, but was at one time accustomed to pronounce decisively upon it, and let the purchaser appeal if he would (o). And as late as 1813 Lord Eldon adopted this course and compelled a purchaser to take his opinion on the title unless he would reverse it {p), though the doctrine of doubtful titles was at that time at least ninety years old and firmly established. And recently there has been a return to this practice, as far as pure questions of law are concerned, the Courts (j) T>odsley v. Kinucrsley, Amb. 406. (j) Marlow v. Smith, 2 P. Wms. 201. {k) Shapland v. Smith, 1 Bro. C. C. 76. (I) Gale V. Gale, 2 Cox 146. In Eden's note to Cooper Denne, 4 Bro. C C. 88, it is said that no such decisions could be found amongst Lord Northington's MSS. (m) Sloper v. Fish 2 V. A B. 149. (n) Blosse v. ClGiimorrix, 3Bli. 62; and see Parker v. Tootah 11 H. L. C. 158. (o) Biscoe V. Perkins, 1 V. ife B. 493 ; Jervoise v. Duke of Sorthumberland, IJ. & W. 569 ; Vancouver v. Bliss, 11 Ves. 464 ; Stapylton v. Scott, 16 Ves. 273 ; Fry Sp. Perf . sec. 860. (p) Biscoe V. Perkins, 1 V. & B. 493. And see Eden's note to Cooper v. Benne, 4 Bro. C. C. 88. A.T.— 12 178 DOUBTFUL TITLES. holding that as between vendor and purchaser they are bound to decide questions of law as between other litigating parties (q). -' In matters of pure law there seems to have been some doubt originally as to the power of the Court of Chancery to bind by a decision (r). Lord Eldon said, in dealing with a pure question of law under a statute, that it he were to give the relief askad for upon the construction pressed, he would make a declaration " at the hazard of what would be decided when the question was litigated in a Court of law " (s) ; and though he expressed his opinion, he sug- gested a case for the Court of King's Bench. A case could not, however, be sent to law without the purchaser's con- sent {t) ; and from an unwilling purchaser the necessary consent could not of course be obtained. Although if a case were sent to law the certificate of the Common Law Court might have been confirmed and acted upon (?t), the Court might have refused to act upon it (r), for it appears that it did not bind either the Chancellor (iv) or the par- ties {x). Indeed, it seems that the Court of Chancery was bound, notwithstanding the certificate to form an opinion of its own and act accordingly (y). But where the opinion of (q) Alexander v. Mills, L. R. G Ch. App. 131 ; Osborne v, Eowlett, L. R. 13 Ch. D. 781 ; Forster v. Abraham, L. R. 17 Eq. 354 ; Bull v. Hutchem, 32 Beav. 619; Wrigley v. Sykes, 21 Beav. 348. (r) Cooper v. Denne, 4 Bro. C. C. 87. But qmvre whether the expression "no jurisdiction to bind the question" does not mean to bind absent parties. (s) Jones V. Parishes of Montgomertj, 3 Swans. 226 ; Pelham v. Gregory, 1 Eden 521. But see White v. Lisle, 3 Swans. 344. (t) Roake v. Kidd, 5 Ves. 647 ; Fyrke v. Waddingham, 10 Ha. 11. (») Wilkinson v Chapman, 3 Riiss. 145, 148. (r) Sheffield v. Lord Mulgrave, 2 Ves. Jr. 526, 529. (jc) Prebble v. Boghurst, 1 Swans. 320. ' - (x) Sharp v. Adcock, 4 Russ. 375. (y) Lansdoivne v. Lansdowiie, 2 Bli. 86 ; Wykham v. Wykham, 18 Ves. 395, where the King's Bench and Common Pleas each certified a different opinion, and Lord Eldon differing from both decreed according to his own view. See also L>uke of yor/olk's case, 3 Ch. Ca. 1. ORIGIN OF THE DOCTRINE. 179 the Court was fortified by the opinion of a Court of Law, specific performance was decreed (z). The power to send a case to law was subsequently taken away from the Court of Chancery, and there was given to it as a sort of compensation power to request the attend- ance of a Common Law Judge (a). : r ., -,. Whatever part, if any, this want of power may have played in the origination of the doctrine of doubtful titles, there was ample power in the Court at a later period to decide pure questions of law without extraneous legal aid {b) ; and yet the doctrine suffered no immediate change on that account. It will thus be seen that the doctrine is purely an equitable one (c). A decree for specific performance cannot be claimed as of right, but is in the discretion of the Court (d), and the Court is upon this theory under no obligation to decide conclusively upon the title for the benefit of the purchaser. It will be seen, however, that the rule of the Court has varied ; and that where questions of law are raised, the present practice is for the Court to dis- pose of them. In dealing with questions of fact, however, cases must frequently occur in which it is not possible for the Court to arrive at any decision ; for example, where a sufficient knowledge of the facts cannot be acquired, and there is not a strong enough presumption in favour of the title to {z] RHshton V. Craven, 12 Pr. 589 ; Charlton v. Cracen, 12 Pr. (519; Clon- nwrt V. Uliitaher, 2 Jarm Wills, 4th Ed. 4«)0, cited 10 Ha. 10. {a) See dictum of Kiudersley, V.C, in Hnyiii's v. C. <(• H. 2i. Co., 8 W. R. 337, upon 14 & 15 Vict. cap. 83, sec. 8. (6) Shreusbury li. Co. v. Stour Valle]) li. Co., 2 D. M. & G. 880. (c) There are cases at law in which the existence of a reasonable doubt upon the title has been held a sufficient defence to an action by the vendor for breach of the contract to purchase: J [art lei/ v. Pehall, Peake N. P. C. 178 ; and a good cause of action by the purchaser to recover his deposit : WiUle V. Fort, 4 Taunt. 334; Elliott v. Kd wards, 3 B. ), however, Lord Eldon, having in a previous case (c) declared the title to be good, compelled the pur- chaser to accept it and directed him to pay costs. (ii) Between Appellate and Inferior Courts. — In Hamilton V. Backmaster (d) it was stated that the simple expression of a doubt in the Court below was always sufficient to prevent the title from being forced upon a purchaser. And in Collier v. McBean (e), the Master of the Bolls having decided against the title, the Lords Justices refused to force it on the purchaser. But in Sheppard v. Doolan (/) Lord Chancellor Sugden said, " With respect to the common cases of doubtful title, I cannot agree with the proposition that an unfavourable decision in the Court of inferior juris- diction renders the title doubtful. The Judge of the Superior Court would still be bound to exercise his own discretion and decide according to his own judgment. I have myself often argued at the bar in support of the proposition, but always without success; for although I have urged that no Judge could consider a title to be free from doubt, when one or two Judges competent to decide the question had pronounced it to be defective, I have been ever met by this answer, that to adopt such a doctrine would be in effect to leave the ultimate decision of the (a) Midlinfjs v. Trinder, L R, 10 Eq. 454. D. F. & J. 130 (b) 3 Mer. 456. (c) Biscoe V. Perkins, 1 V. & B. 485. {d) L. R. 3Eq. 328. (e) L. R. 1 Ch. App. 85. (/) 8 Dr. & War. 8. See also Cook v. Daicson, 3 CLA88IFIC\TION OF DOUBTFUL TITLES. 187 question to the Court below, while the law provides an appeal to the Court above." This case has been recCi.:'/ approved and followed ; and so, it may be taken to be a general rule that an appellate Court will not be deterred from reconsidering the question raised and compelling a purchaser to accept its view though differing from that of the Court appealed from ((7). 3. Reasonable doubt — Difference of legal opinion. — In Marlow v. Smith (h), a purchaser was let oif, '' there being the opii ion of learned men against the title." But in the modern decisions this has been held insufficient ground for lidding a title to be doubtful. And so, in Hamilton v. JUickmaster (i), Sir W. Page Wood, V.C., declared a title to be good, and forced it upon the purchaser against the opinion of Mr. Dart, one of the conveyancing counsel of the Court. Indeed, it has been more than once laid down that where doubtful cases of construction arise, whether on an Act of Parliament or the words of an instrument or will, it is the duty of the Court to remove the doubt by deciding it(i). 4. Construction of instrument — General principle. — Where the doubt is said to arise upon the construction of a par- ticular instrument to which a general principle of law is to be applied, it appears that the Court will determine the point in issue either for or against the purchaser. This must not be confounded with those cases in which a general question of law is raised and the authorities on the point are conflicting, in which cases the title may well be said to be doubtful (k). In dealing with a will upon which a title {fj) Beioley v. Carter, L. R. 4 Ch. App. 2H0; Radford v. Willis, L. R. 12 T^q. 105 ; 7 Ch. App. 7 ; Alexander v. Mills, L. R. Ch. App. 132 ; Oshonie v. Rowiett, L. R. 18 Ch. D. 781 ; Hell v. Iloltby, L, R. 15 Eq. 193. (//) 2 P. Wm. 201. (i) L. R. 3 Eq. 323. (j) Bell V. Holtby, L. R. 15 Eq. 193; Bell v. Hutchem, 32 B-jav. 619. [k] See Palmer v. Lochi, L. R. 18 Ch. D. 388; Re Macnabb, 1 Ont. R. 94. 188 DOUBTFUL TITLES. depended, James, L.J., said, " My opinion, therefore, is decidedly in favour of the title, and the question heing one depending on a broad, general principle of construction rot affected by any special context, I am of opinion that there is no such doubt in the case as to induce us to refrain ]"om saying that the title is one which must be forced on the purchaser " (Z). (iii) Interpretation of particular instrument only. — A dictum of Lord Justice James may be cited with respect to this. " As a general and almost universal rule, the Court is bound as much between vendor and purchaser, as in every other case, to ascertain and determine as it best may what the law is, and to take that to be the law which it has so ascertained and determined. The exception to this will probably be found to consist not in pure questions of legal principle, but in cases where the difficulty and the doubt arise in ascertaining the true construction and legal operation of some ill-expressed and inartificial instru- ment " (m). In the cases then of particular instruments whose true construction does not depend upon any general principle of law, much uncertainty must ever arise. But where the vendor and purchaser alone would be affected, and the interests of third parties not called in question, there is no reason why the uncertainty should not be removed by a decision. But where interested third parties are not before the Court, and so would not be bound, the general principle respecting doubtful titles would apply {n). But even when absent parties are interested, it may be said that there must be a reasonable probability of litiga- tion from that source (o). (/) Radford v. Willin, L. R. 7 Ch. App. 1]. See also Alexander v. Mills, L. R. 6 Ch. App. 132. (m) Alexander v. Mills, L. R. 6 Cli. App. 131, 132. (n) See Lincoln v. Arcedeckne, 1 Coll. 98 ; Bristoio v. Wood, 1 Coll. 480; Butterjield v. Heath, 15 Beav. 408 ; Re Foster dt Lister, L. R. 6 Ch. D. 87. (o) Osborne v. Hewlett, L. R. 13 Ch. D. 781. And see ante p. 182. CLASSIFICATION OF DOUBTFUL TITLES. 189 6. General principle of law. — It will have been seen from tbe early part of this chapter that the practice varied as to deciding pure questions of law. But the tenor of recent cases is decidedly in favour of the rule that the question should be determined either for or against the title. Lord Romilly, M.R., repeatedly expressed his opinion, (as he said in Bull V Hutchens {p), that it is the duty of the Court to decide questions of law which arise in determining the validity of titles ; and he refers to Lord Eldon as having observed the same practice. Lord Justice James, as we have seen (q), considered that there was no difference be- tween the case of vendor and purchaser and any other case in this respect. And Sir Geo. Jessel, while of opinion that the early rule as to protecting the purchaser was the best (r), yet considered it to be the duty of the Court in questions of pure law to express an opinion (s) ; and he appears even to have followed this rule where there were parties interested who were not before the Court who might litigate the point afresh with the purchaser (t). But, as we have seen, the probability of such litigation must largely depend upon the amount of doubt that exists with regard to the point in question (m). 6. Uncertainty of fact. — Where the determination of a matter of fact is essential to the validity of the title, the purchaser is, of course, entitled to satisfactory proof of the fact. In the absence of such proof or of evidence leading to a presumption of the fact, the title is not made out, (p) S2Bea.\. 619, Wrigleyw.Sy kes, 21 Be&\. '631. (q) Supra p. 188. (r) Osborne v. Rowlett, L. R. 13 Ch. D. 781. ^ (s) Forster v. Abraham, L. R. 17 Eq 354. {<) Osborne \. Rowlett, L. R. 13 Ch, D. 781. And see Spencer v. Topham, 22 Beav. 573. (m) See Wrigley v. Sykes, 21 Beav. 348. In considering the validity of an objection the present state of the authorities is to be regarded, and not simply whether there was a time at which the point would have been held to be doubtful : Eno v. Eno, 6 Ha. 177. 190 DOUBTFUL TITLES. and cannot therefore be forced upon the purcbaper. The matter of fact upon which i title depends may be such as in its nature is not capable of satisfactory proof; or it may in its nature be capable of satisfacto y proof, and yet not be satisfactorily proved {r). So, too, there may be doubt when the testimony is direct, because it may be given mala fide, or if bona fide, may be given by mistake ( ")• (i) K'^gative proof. — When the matter of fact is of such a nature as not to be susceptible of proof the title must be pronounced doubtful. Thus where the validity of a title depended upon whether it could be shown that there was no creditor who could take advantage of an act of bankruptcy by the vendor, the matter depending on negative jn-oof and not being ascertainable with precision, the title was con- sidered to be too doubtful to force on a purchaser [x). And where the ability of a mortgagee to make out a title under his power of sale depended upon whether he had or had not notice of a judgment at the time he took his mortgage, the Court refused to force the title on the purchaser, though notice was denied both by the mortgagee and his agents iy). . ,: . , . Where the vendor's title is a title by popsession, the whole point at issue is whether the paper title has been extin- guished, and whether the vendor, either alone or together with those under whom ho cl pirns has been in possession for the statutory period ; and therefore the interests of ab- sent parties are necessarily involved in the widest sense. Yet it has been held that a title by possession may be forced npon a purchaser {z). The evidence to be adduced in such cases is partly positive and partly negative — positive as to (y) Smith v. Death, 5 Madd. 372. (^^:; - 216 TITLE BY INHERITANCE, SUCCESSION AND DEVISE. produce evidence not only that he is the legitimate son, but that he is the eldest or only son of his parents. Certi- ficates of his parents' marriage and of his own baptism within a reasonable period of the marriage, are admitted as full and ample evidence of legitimacy without any proof of the identity of the parties (p). To prove the pedigree of a second son, certificates of the marriage of his father and mother, of the baptism of him- self and his eldest brother, and of the burial of his eldest brother, are the best and appropriate evidence (q) ; there should also be strong negative evidence that the eldest brother died without issue. If this is not apparent from the certificates produced, a declaration from some member of the family, or acquaintance, should be procured, testify- ing his belief that he was either unmarried, or if married, never had issue, or that issue born died in infancy, or as the case may be. The declarant should also state that he was intimately connected or acquainted with the family and must have known of such issue if there had been any ; and if possible he should state some facts, such as close residence, or constant communication with the family, which might corroborate his testimony , and should at least state his means of knowledge (r). The purchaser should also, if any suspicion exists of the marriage of the eldest brother, or birth of issue, take the precaution to search in the parish records for evidence, or make independent enquiries. If the elder brother left issue, proof of their death should be required ; and the like evidence that the issue left no issue. To prove the pedigree of a third or fourth son similar evidence is required, in each case accounting for all who would have inherited before him. In proving the title of daughters, the same evidence ip) Gov. Con. Ev. 278. (q) Gov. Con. Ev. 279. (r) Re Harding, 3 Ch. Cham. 233. STATUTORY EVIDENCE. 217 must be given, the death of all the sons (if any) without issue (or as the case may be) being proved, and also the death of any daughters who would have inherited, and that they died without issue, or as the case may be («). The proof of a collateral heirship, as of a brother, an uncle, or aunt, or cousin, must be established in the same way (t). ^^■ (iii) Descent after Ut January, 1852. Where the ancestor has died on or after the Ist January, 1852, and before 1st July, 1886, his children inherit equally (u). Proof should in such cases be adduced of the marriage of the parents, and that the claimants are the only children of the marriage. If any are dead without issue, the fact of their death without issue, or the death of their issue, if any, must be similarly proved. (iv) Statutory evidence. Every clergyman celebrating a marriage is by statute {v) bound to give a certificate thereof to the parties, and to enter a true record of the same in a book. He was for- merly [iv) bound to make a return to the Registrar of the county ; and the Registrar was to enter the return in a book, and his certificate was evidence of the marriage in case of the death or absence of the witnesses. The certifi- cate of the clergyman being one which he is bound to give by statute is also evidence of the marriage ; and in a matter under the Quieting Titles Act, affidavit evidence of a mar- riage was refused until the absence of the certificate was accounted for (a:). (»■) Gov. Con. Ev. 280. {tt Ibid. («) R. S. O. cap. 105, sees. 18 et seq. But when the legal estate is held in trust it descends as before : sec. 40. iv) R. S. O. cap. 124, sec. 16. (ic) C. S. U. C. cap. 72, sees. 5 and 7. ( r) Re Harris, 2nd Dec. 1869. 218 TITLE BY INHERITANCE, SUCCESSION AND DEVISE. " Every clergj-^man, teacher, minister or other person authorized by law to baptize, marry cr perform the funeral service in Ontario, shall keep a registry showing the persons whom he has baptized, or married ; or who have died within his cure and belonging to his congregation" (y). He is also bound to make a return to the clerk of the municipality, who is a Division Registrar, of all marriages which he has celebrated (z). The father of any child born in this Province or in case of his death or absence the mother, or in case of the death or inability of both pp,rents, any person standing in the place of the parents, or if there be none such, then the occupier of the house or tenement in which to his knowledge such child was born or the nurse present at the birth, is required, within thirty days from the date of the birth, to give notice to the Division Registrar of the division in which such child was born, of the date of birth, its name and sex, the names of the father and mother, together with the rank or profession of the father and the residence and description of the informant, the name of the accoucheur and the date of registry (a). The particulars of marriages and births are forwarded to the Registrar-General, the Provincial Secretary, who keeps them as records in his office, and extracts therefrom certified by him are evidence of the facts certified [h). Proof of marriages and births may by this means be given ; and this proof of birth is to be preferred to a certi- ficate of baptism which is no evidence of the exact age of the child, though it may be good evidence of its legitimacy (c), unless the clergyman who performed the rite of bap- tism entered the age of the child at the time, in which case it would be evidence to a conveyancer of the age. (ij) R. S. 0. cap. 36, sec. 7. (z) Ibid. sec. 11. (a) Ibid. sec. 8. {b) Ibid. sec. 19. (c) Gov. Con. Ev. 281. STATUTORY EVIDENCE. 219 The death and burial of any children or other persons who might have inherited may be proved by official certifi- cates as in the case of marriages and births. The occu- pier of any house in which a death has taken place or some person resident in the house if tbe occupier has died, or the coroner who has attended any inquest, is required to report the death to the Division Registrar, who is to give a certificate to any person requiring the same for the purpose of burial (d). And every minister or ()t])er person who performs any funeral service, unless he has received such a certificate is required to make a return of the death to the Division Registrar {e). And every medical practitioner who was last in attendance during the last illness of any person is required to make a return of the death to the Division Registrar (/). These returns are forwarded to the Registrar-General, whose certificate is evidence of the facts certified. Evidence may also be given in other ways. Thus, declarations of a deceased parent are evidence of the time of a child's birth (g) ; and an entry by an accoucheur of his having delivered a wonian of a child on a certain day, referring tc his ledger in which he had made a charge for his attendance which was marked paid, has been received as evidence {h). In the absence of direct testimony as to marriages and deaths resort is sometimes had to presumptions. But in the case of presumed death, evidence which might be sufficient to rp.ise the presumption in an action of eject- ment would not necessarily be sufficient as between vendor and purchaser. The evidence must be such that a judge {d) R. S. O. cap. 36, sees. 12, 13. (e) Ibid. sec. U (/) Ibid. sec. 15. (n) Gov. Con. Ev. 281. {h) Higham v. Ridgway, 10 East 109. 220 TITLE BY INHERITANCE, SUCCESSION AND DEVISE. would give a clear direction to a jury in favour of the fact before it will be presumed as against a purchaser (i). A purchaser from an heir at law or devisee is not bound to require proof that the debts of the ancestor have been paid, but will take a good title at any time before judg- ment and execution against the personal representative (j). 2. Succession hy personal representative. — (i) Bare trustee. By the Trustees and Executors Act (k) it is declared that upon the death of a bare trustee of any corporeal or incor- poreal hereditaments of which he was seised in fee simple they shall vest in his legal personal representative from time to time. A bare trustee is the mere depositary of the legal estate. If he has any beneficial interest in the land he is not a bare trustee (l). Thus, a vendor who has let the purchaser into possession before payment of the purch^ie money and execution of the conveyance has a lien on the land for his purchase money, and is not within the Act (m). But where devisees in trust for sale took beneficial interests in the land devised, the estate being in course of adminis- tration by the Court, it was said that they had no duties to perform except to obey the order of the Court, and so were bare trustees (n). But whether a trustee having no beneficial interest in the land, but having active duties to perform, is or is not a bare trustee, is perhaps an open question (o). (ii) Personal representative of vendor. By the same Act it is declared that when any person has died under a liability to convey in pursuance of a written (i) See ante, Cli. VI. (j) Reid V. Miller, 24 U. C. R. 610 ; Gordon v. Gordon, 11 Ont. R. 611 ; Dart. Y. & P. 622. {k) R. S. O. cap. 107, sec. 5. (I) Wall V. Brigla, 1 Jac. & W. 501. (m) lie Docwra, L. R. 29 Ch. D. 693. (n) Morqan v. Swansea, L. R. 9 Ch. D. 582. See also Christie v. Ovington, L. R. 1 Ch. D. 279. (o) Morgan v. Swansea, L. R. 9 Ch, D. 586. MARRIED women's ACT, 1884. 221 contract, either intestate, or without having made any provision in his will for the conveyance of the land, then the administrator, the executor, or the administrator with the will annexed, as the case may be, is the proper person to convey (;9). (iii) Married Women's Act, 1884. By The Married Women's Property Act, 1884 (?)> it is enacted as follows : — " For the purposes of this Act the legal personal representative of any married woman shall, in res- pect of her separate estate, have the same rights and liabili- ties and be subject to the same jurisdiction as she would be if she were living." In the absence of an express declaration it may well be doubted whether the real estate of a married woman would be cast upon her personal representative in preference to her heir at law ; but it is difficult to avoid the conclusion that that is the result, if full effect is to be given to this section. The term " separate property " is frequently used in the Act to denote both real and personal estate, and the expression *' separate estate " is treated as its equivalent in the fourth section. In the twentieth section, where per- sonalty alone is treated of, the expression ** separate per- sonal property " is used, and it occurs nowhere else in the Act. It will also be noticed that the personal representative is subject to the same liabilities as the married woman would be if living ; and when we consider the nature of a married woman's liability, viz., that it is a liability to have her separate estate charged with her debts, it may well be that the Legislature intended to lodge her real estate in the hands of her personal representative, in order that it might there be charged in any action that might be brought against him. In any case to which this section might apply, it would therefore be prudent to require the concurrence of (p) R. 3. O. cap. 107, sec. 25. (g) 47 Vict. cap. 19, sec. 19. 222 TITLE BY INHEKITANCE, SUCCESSION AND DEVISE. the personal representative where the heirs at law offer to convey. ■"'-., ■ » . ^ , ■ - (iv) Dei'olution of Estates Act. _;. When the owner of land has died on or after the first of July, 1886, entitled to an estate of inheritance in fee simple, or limited to the heir as special occupant, such estate devolves upon and becomes vested in his lej^al personal representatives from time to time, to be distributed, subject to the payment of debts, as personal property (r). This enactment produces a highly anomalous state of affairs upon the death intestate of the owner of land ; for during the period between his death and the appointment of an administrator the land is absolutely without an owner. Except in the case of a bare trustee, there is no parallel to it in our law, which before this Act required that some person should always be seised, and in the case of an intestacy always cast the estate upon the heir at law immediately upon the death of his ancestor. It has its parallel, however, in the Roman Law, which provided a fictitious person to represent the defunctus' until the heir entered. "As a rule, a certain period of time, of shorter or longer duration, elapses between the death of the testator and the Adition, or entrance of the heir upon his inheritance ; hence, the question must arise, who is the party to be clothed with the legal personality of the Defunctus, or, as the Germans express it, ' Who is to be the Trager during this intermediate period of time?' In the absence of a natural person, a juridical person must be found to accept the inheritance, and such a juridical person is created in the person of the Hereditas jacens. This juridical person, for the interval, is regarded as the owner of the things constituting the inheritance. . . . The fiction of the personality (r) 49 Vict. cap. 22. DEVOLUTION OF ESTATES ACT. 223 of the Hereditas jacens ceases the very moment that the heir has entered upon the inheritance " (s). The creation of a fictitious person, however, would not dispose of the difficulty as to seisin. It is perhaps more in accordance with the spirit of our jurisprudence to regard those who are ultimately entitled to share in the distribution, and so equitably entitled to the land subject to payment of debts, as the equitable owners of the land pending the appoint- ment of an administrator and subject to the accruing of his title. Yet they cannot be said to be seised, nor are they able to make title to the land ; for any interest they may be invested with is subject to be divested by the appoint- ment of an administrator ; and anj^one entering into actual possession of the land upon or after the death of the owner would probably defeat any other title by remaining in for ten years (t). Though the letters of administration are now the only possible evidence of title upon an intestacy, they are no better evidence of intestacy than they were before ; and though payments made bona fide to an administrator whose letters are subsequently revoked are a discharge to the persons making them («), it is questionable whether a title acquired under similar circumstances would be good, un- less the purchaser could shelter himself under the Registry Act, as in the case of a purchase from an heir. And so it may be that, in the absence of conclusive proof of intes- tacy, a purchaser could not be compelled to take a con- veyance from an administrator until after the lapse of a year from the death of the defunct us. * ' " v Where an administrator has, under this Act, distributed the land in specie amongst those beneficially entitled thereto, and title is claimed through the latter, the question may be raised whether the purchaser is not bound to ascer- (s) Tomk. & Jen Rom. Law, 205. (t) R. S. O. cap. 108, sec. 7 ; Re Williams, L. R. 34 Ch. D. 558. {u) R. S. 0..cap. 46, sec. 57. 224 TITLE BY INHERITANCE, SUCCESSION AND DEVISE. tain whether those who have shared in the distribution were the only persons entitled. But as the right to share in the distribution is an equitable right or interest, as distinguished from the ownership of the legal estate, it seems preferable to hold that, in the absence of actual notice, a registered purchaser from one who has taken the land in course of distribution from the administrator should be protected from the claim of one who should have shared in the distribution but was omitted. The proper course in effecting a distribution in specie is for the administrator to convey a share to each person entitled ; but though this would be sufficient as regards the passing of the title, it is more prudent to require all the beneficiaries to join in each conveyance in order that their assent to the mode of distribution may be testified. 3. Wills, Where title is derived under a will, the probate or a copy sealed with the seal of the Surrogate Court (r), or if it is registered perhaps a copy certified by the Registrar (w), will ordinarily be sufficient proof of the will ; and the purchaser's solicitor may, as in the case of a deed, pre- sume due execution according to the purport of the will. A will proves itself upon production when it is thirty years old, computing the time from its date and not from the death of the testator (j7). (i) Before 1874. Different modes of execution have been prescribed at various times, and care should be taken to observe the mode of execution in every case. By the Statute of Frauds it was declared that all wills should be signed by the tes- (v) R. S. O. cap. 46, sec. 4. {w) R. 8. O. cap. Ill, sec. 24. But see remarks on p. 86. {x) Mann v. Ricketts, 7 Beav. 93. WILLS AFTER IST JANUARY, 1871. 225 tator or some other person in bis presence and by his express direction ; and should be subscribed in his presence by three or four credible witnesses. A witness was not credible within the meaning of the statute if he took a beneficial interest under the will, and so for want of a credible witness in such cases, the will was void. This was altered however, by declaring void the legacy and so making the witness competent. ; « > By a statute of 1834 (i/), any will executed after the 6th March, 1834, in the presence of and attested by two or more witnesses was declared to have the same validity and effect as if executed in the presence of and attested by three witnesses ; and it was also declared to be sufficient if such witnesses subscribed their names in presence of each other, although their names might not be subscribed in the presence of the testator. It was held that this enactment did not repeal the Statute of Frauds, but that both might subsist together ; so that a will subscribed by witnesses in accordance with either Act was sufficiently attested (z). (ii) After 1st January, 1874. , By the Wills Act of 1873 {a) it is enacted that ** no will shall be valid unless it is in writing, and executed in man- ner hereinafter mentioned, that is to say, it shall be signed at the foot or end thereof by the testator or by some other person in his presence and by his direction ; and such signature shall be made and acknowledged by the testator in the presence of two or more witnesses present at the same time, and such witnesses shall attest and shall subscribe the will in the presence of the testator ; but no form of attestation shall be necessary." Former statutes iy) C. S. U. 0. cap. 82, sec. IS. {z) Crawford v. Curragh, 15 C. P. 55 ; Little v. Aikman, 28 U. C. R. 843. J^ut see Rifan v. Devereux, 26 U. C. R. 107. (a) R. S. O. cap. 106, sec. 12. A.T. 15 226 TITLE BY INHERITANCE, SUCCESSION AND DEVISE. were repealed, and the mode of execution prescribed by this statute is therefore the only mode now existing. The Act applies to wills made or re-executed or revived on or after 1st January, 1874 (^). - • (a) Attestation. The witnesses need not sign their names in full ; it is sufficient if they write their initials or a description, or make their mark(c); but a seal is insufficient (c?j. They must sign in the presence of the testator ; but it is suffi- cient if they sign under such circumstances that the testa- tor might have seen them if he had chosen to look, though he may not in fact have seen them sign {e). But where a testatrix signed in the presence of two witnesses, who twenty minutes afterwards put their names to the paper in an adjoining room, the door of which was open but in such a position that they were out of sight of the testatrix, and she was not conscious that they were signing the paper, it was held that the attestation was insufficient (/). But where there is an attestation clause stating that the wit- nesses have signed in presence of the testator there is a strong presumption in favour of the regularity of the attes- tation and due execution of the will ; and even where one of the witnesses in such a case swore that the attestation had taken place in an attorney's office and not in the house of the testator where the will had been signed, the Court declined to act upon his recollection, and decreed probate of the will as duly executed (g). The witnesses must sign with the intention of subscrib- ing to the execution ; their signatures need not be in any {h) Sec. 7. (c) Theob. Wills. 28. (d) Ibid. (^) Ibid. 26. (/) Jeiiner v. Fhich, L. R. 5 P. D. 106. in) Wrifiht v. liogerx, L. R. \ P & D. 678. See also Wright r. Sanderson, L, R. 9 P. D. 14U. .\y. ATTESTATION OF WILLS. 227 particular part of the will, but will suffice wherever placed if intended to attest the operative signature of the testa- tor [h). Where a will was written on one page ot foolscap at the end 0. which the deceased's signature appeared with the words " witness William Hatton," and the names of three other persons appeared under a memorandum not testa- mentary at the top of the second page of the sheet, the Court came to the conclusion that the three names were not signed with the intention of attesting the will (i). So, where a will was written on ten sheets of paper, the first nine being initialled by the deceased whose signature itppeared at the end of the tenth, it was held that the signa- tures of two out of three witnesses on the first nine pages, and that of the third on the tenth, did not amount to a proper attestation {j). But where a will was written across the second and third pages of a sheet of note paper, and the attestation clause and the signatures of the testator and witnesses were written on the back of the paper, the will having been written by the testator in the presence of the witnesses immediately before execution, it was held that it was properly executed (k). But the attestation, if not on the same sheet of paper as the signature of the testator, must be on a paper physically connected with that on which the testator's signature appears (0;%nd when sheets of paper are found fastened together it is presumed that they were so fastened together when executed, unless there is evidence to the contrary (m). Where there were two witnesses, one of whom signed •^'•■' -^ ..V, :^i. (//) Phipps V. Hah, L. R. 3 P. (t D. 168. (/) In bonis Wilson, L. R. 1 P. & D. 269. (.;) Phipps V. Hale, L. R. 3 P. & D. 166. See also In bonis Dilkes, L. R. 3 P. A D. 164. {k) In bonis Archer, L. R. 2 P. & D. 252. See also In bonis Horsford, L II, 3 P. & D. 211. '/) In bonis Braddock, L. R. 1 P. D. 435 ; In bonis Hatton, L. R. 6 P. D. 1204. (ni) Pees V. Itees, L. R. 3 P. ature of the testator and the subscription of the witnesses are made in the margin or in some other part of the will opposite or near the alteration, or at the foot or end of, or opposite to a memorandum referring to such alteration, and written at the end or in some other part of the will (/). A memoran- (6) III bonig Casmore, L. R. 1 P. & D. 653 ; In bonis Pearn, L. R. 1 P. D, 70. (c) In bonis Puddephatt, L. R. 2 P. & D. 97. (d) In bonis Wotton, L. R. 3 P. & D. 159 ; In bonis Ainswortb, L. R 2 P. & D. 151 ; Margary v. Bobinson. L. R. 12 P. D. 8. (e) In bonis Arthur, L. R. 2 P. & D. 273. (/) R. S. O. cap. 106, sec. 23. MISCELLANEOUS. 231 diim amounting to a codicil and effecting an alteration in the meaning of the will is not to be treated as an alteration in the will within the meaning of this section, so as to permit of valid execution in the margin (g), . (c) Miscellaneous, By the Wills Act it is also declared that no appointment made by will, in exercise of any power, shall be valid unless it is executed in the manner prescribed by the sec- tion already quoted ; and every will executed in the manner prescribed by the Act shall, so far as respects the execution and attestation thereof, be a valid execution of a power of appointment by will, notwithstanding it has been expressly required that a will made in exercise of such power shall be executed with some additional or other form of execution or solemnity (h). By the Trustees and Executors Act (i), provision is made for the sale and mortgage by executors and admin- istrators with the will annexed of lands devised, where the testator has not expressly conferred the necessary powers by liis will or where he has not devised a sufficient estate (j). And powers of assigning and discharging mortgages were also thereby given to personal representatives (k). - By The Devolution of Estates Act, 1886, the land of any person dying on or after the 1st July, 1886, and held by him in fee simple or limited to the heir as special occu- pant, shall on bis death, notwithstanding any testamentary disposition, devolve upon and become vested in his legal personal representative from time to time. {g) III bonis Huqhe*, L. R. 12 P. D. 107. {h) R. 8. O. cap. 106, sec. 13. (t) R. S. O cap. 107, sees. 17 to 24. (j) See Yost v. Adams, 13 App. R. 129. {k) R. S O. cap. 107, sees. 15. 16. U -^ 282 TITLE BY INHERITANCE, SUCCESSION AND DEVISE. (iii) Married a omen. • Before the consolidated statute respecting the property of married women a will made by a married woman without her husband's assent (l) was void, except in the following cases. A married woman who was an executrix might make a will appointing an executor for the purpose of con- tinuing the succession (m) ; and where she was donee of a power exercisable by will she might so exercise the power {u). And there is incident to equitable separate estate the power of disposing of it either by deed or by will unless the married woman is restrained from alienating. So that a married woman could always dispose of such property by will (o). By the consolidated statute it was declared that from and after the fourth day of May, 1859, every married woman might by devise or bequest executed in the presence of two or more witnesses, neither of whom was her husband, make any devise or bequest of her separate property, real or personal, or of any rights therein, whether acquired before or after marriago, to or among her child or children, issue of any marriage, and failing there being any issue, then to her husband, as she might see lit, in the same manner as if she were sole and unmarried ; but her husband was not to be deprived of any right he might have acquired as tenant by the curtesy {p). It will be observed that there is no direction in this Act as to any formal attestation or subscription by the witnesses. This statute clearly restricted the right of a married (l) Willcock V. ^oble, L. R. 8 Ch. App.778; L. R. 7 H. L. 580. (ni) Scammell v. yVilkingon, 2 East 552 ; In bonis Richards, L. R. 1 P. A D. 150. in) Driver v. Thompson, 4 Taunt. 294 ; IVillock v. Noble, L. R. 7 H. L. 580; Wright v. Englejield, Amb. 468; S. C. sub. nom. Wright v. Cadogun, 2 Eden 239. (o) Taylor v. Meads, 4 D. J. & S. 597 ; Pride v. Bubb, L. R. 7 Ch. App. 64; Cooper v. Macdonald, L. R. 7 Ch. D. 288. (p) C. S. U. C. cap. 73, sec. 16. REGISTRATION OF WILLS. 1^ 233 woman to devise her separate estate in any other way than that prescribed by the statute ; and so where a married woman made a testamentary disposition to her husband in trust to convert the property and out of the proceeds to pay a legacy to her only child, another to her husband, and to divide the residue amongst her brothers and sisters, it was held that except as to the legacy to her child the will was void ; and as to the residue over and above that legacy she died intestate (q). Whether under this Act a married woman could devise her separate estate to one or more of her children to the exclusion of others was doubtful (r). The fact that her husband was in possession of property belonging to a married woman before the Act of 1859 took effect was held to be no obstacle to her right to devise it under this Act (s). . . -..o - = ■■-? • ^ By the Wills Act of 1878 {t) "person" and ** testator" shall include a married woman, and consequently the powers of a married woman to devise her land are now un- restricted. No will made by any person under the age of twenty-one years is valid ; and though the will is, under this Act, to speak from the death, a will made by a minor who dies after atta,ining his majority is nevertheless invalid {ti). (iv) Registration* By the Registry Act (v) a will must be registered within twelve months next after the death of the testator, unless the devisee or person interested in the lands devised is dis- abled from registering it by reason of the contesting of the (q) Mitchell v. Weir, 19 Gr. 568. (r) Munro v. Smart, 2lj Gr. 37. Cf. Re Ontario L. d' S. Co. d; Powers, 12 Ont. R. P82, and caises there cited. («) Re Hilliker, 3 Ch. Ch. 72. {t) R. S. O. cap. 10(i, sec. 9, sub-sec. 4. (u) Leith & Sm. 408, 411. (r) R. S. O. cap. Ill, sec. 75. 234 TITLE BY INHERITANCE, SUCCESSION AND DEVISE. will or other inevitable difficulty ; and if so disabled then within twelve months after the removal of the impediment. Infancy is not an inevitable difficulty within the meaning of this Act (iv) ; and a conveyance by tde heir-at-law to a purchaser for valuable consideration (or), without rotice of the will and registered before it will take priority over the will if it is not registered within the prescribed time {y). It has also been held that destruction of a will about eleven months after the testator's death by his widow, who burned the will so as to enable her to raise money on the land, was not an inevitable difficulty within the meaning of the Act, though, if it had been destroyed immediately after his death, it might have been. Proudfoot, V.-C, said, " To render a difficulty of that kind inevitable, it would need to be one extending over the whole period of twelve months named in the statute. . * . Had the will in this case been concealed, or suppressed, or destroyed immediately upon the testator's death, it is quite possible that the devisees would be unaffected by the failure to register " (^). (w) McLeod V. Tniax, 5 O. S. 455. (- ) Bondy V. Fox, 2'J U. C. R. 64 ; Doe d. EllU v McGill, 8 U. C. R. 224. {y) Mandeville v. Nicholl, 16 U. C. R. 609; Steplien v Simpson, 12 Gr. 493; 15 Gr. 594. (z) Re Davis, 27 Gr.20'ii. '^' \ =-.-'' \-*'; ' ♦ ■: < i ^i-iM^U; Vl! *i fii J^J'*' CONVEYANCES BY MARRIED WOMEN. 235 v»J CHAPTER XII. CONVEYANCES BY MARRIED WOMEN. ,•;... 1. Defective certificates, -;_M U. Joinder of the husband, ; -, 8. Statutory separate estate. , , ; :,-f 4. Summary, :j ji-ii '- f'-J tl;. 1. Defective certificates. Before the 29th March, 1873, a married woman could not make a valid conveyance of her land unlesn she was examined before a Judge, two Magistrates or a Notary Public as to her consent to convey without any coercion on the part of her husband (a). A certificate of the examination and her willingness to convey was required to be endorsed upon the conveyance ; and so strict were the requirements of the law that an informality or irregularity in carrying them out rendered the whole conveyance void. From time to time various statutes were passed respecting the convey- ance of land by married women (6), but the necessity for their separate examination remained until the 29th March, 1873, when an Act was passed declaring that every con- veyance theretofore executed by a married woman of or affecting her real estate, in which her husband had joined, (a) This remark does not apply to separate estate, which is dealt with hereafter. (6) See them collected in Elliott v. Drown, 2 Ont. R. 356. 236 CONVEYANCES BY MARRIED WOMEN. should be taken and adjudged to be valid and effectual to have passed the estate of the married woman professed to be passed by the conveyance, notwithstanding the want of a certificate, and notwithstanding any irregularity, infor- mality, or defect in the certificate, and notwithstanding that such conveyance might not have been executed, acknowledged or certified as required by any Act then or theretofore in force (c). The result of this Act was to make valid all conveyances by married women which before the Act were void for want of the proper certificates or for any informality therein, except in certain cases. The exceptions are contained in the thirteenth section, and may be stated as follows : — 1. When a valid deed has been made by the married woman after the void conveyance and before the 29th March, 1873. In this case the void deed is not cured unless the grantee in the void deed or some one claiming under him had been in the actual possession or enjoyment of the land continu- ously fov three years subsequent to the deed and before 29th Mfirch, 1873, and was on that date in the actual pos- session or enjoyment thereof. 2. When the void deed was not executed in good faith. 3. When the married woman or those claiming under her, was or were in the actual possession or enjoyment of the land contrary to the terms of the conveyance on 29th March, 1873. With respect to the second exception but little need be said. The statute would probably have been held not to extend to the case of a conveyance executed male fide y even if the case had not been expressly excepted. The purchaser should be careful to enquire, whenever he meets with a conveyance made by a married woman before 29th March, 1873, whether it falls within either the first or third exception. If it does, he must observe whether the requirements of the law in force at the time of its execution (c) 36 Vict. cap. 18, sec. 12 ; R. S. O. cap. 127, sec. 13. ' DEFECTIVE CERTIFICATES. 237 were strictly complied with ; and if he finds that they have not, then the deed must be rejected as void. < - - * A good deal of discussion took place in Elliott v. Broivn (d) as to the meaning of the expression '* actual possession and enjoyment contrary to the terms of such conveyance." In that case the plaintiff claimed the east half of a lot through a defective conveyance executed by a married woman who owned the whole lot. After the con- veyance, in 1866, her two sons went into actual possession of the west half upon the understanding that they were to have the whole lot; they paid the married woman fifty dollars therefor, but no conveyance was made to them until after the Act was passed. The sons resided on the west half at the time the Act was passed, but had been, and then were, in the habit of making frequent incursions into the east half of the lot and cutting timber thereon ; and they paid taxes on the whole lot. An attempt had been made by the plaintiff to exercise acts of ownership on the east half before the statute, but his right had been disputed and in consequence he had desisted. In the Queen's Bench Division it was held, Cameron, J.> dissenting, that the pos- session or enjoyment of the married woman or those claim- ing under her which was necessary to prevent the operation of the statute must have been that sort of possession which would, under the Statute of Limitations, have extinguished the paper title. In the Court of Appeal this decision was reversed. Osier, J.A., dissenting. It was there held that open and notorious acts of ownership in assertion of the right to possession under the legal title were sufficient to prevent the operation of the statute. This result is unfortunate, as it throws upon the conveyancer the very grave responsi- bility of adjudicating upon evidence of enjoyment which must ever be of a most unsatisfactory nature while the statute is satisfied by anything short of that open, visible (d) 2 Ont. R. 252 ; 11 App. R. 223. ^} 238 CONVEYANCES BY MARRIED WOMEN. and notorious possession, or enjoyment equivalent thereto, which amounts to exclusion of any other claimant. It is quite possible for acts of ownership to be openly exercised by both parties, neither being able to exclude the other, and each asserting a right to the enjoyment of the land ; and in a conflict between the grantee under a void con- veyance and the married woman, if the acts of ownership by the latter are to be referred to a rightful title and to be considered as contrary to the terms of the void convey- ance, the statute will not operate to validate the convey- ance though the enjoyment by the married woman has not been greater in degree than that of the grantee. In cases within the first exception the Legislature recog- nizes the fact that the grantee in a subsequent valid con- veyance is in constructive possession of the land under his legal title ; and in order to validate the prior defective conveyance there must have been actual continuous pos- session or enjoyment for three years immediately prior to the passing of the Act. In cases within the third exception, the Legislature does not regard the married woman as in such constructive possession that there must have been actual possession in her grantee to avoid her title, but requires of the married woman or those claiming under her actual possession or enjoyment as against the grantee. Thus the symmetry of the Act requires, and the inten- tion of the Legislature appears to be, that the grantee under the defective conveyance should be considered as so con- structively in possession that actual possession, or its equivalent in actual enjoyment, is required to oust him. If . that be so, then the actual possession or enjoyment under the third exception must necessarily be the same kind of possession or enjoyment as is required under the first exception. It is true that the first exception speaks of continuous possession or enjoyment ; but this refers to the time rather than to the mode of enjoyment. The three years must DEFECTIVE CERTIFICATES. 239 have been three conBecutive years preceding the Act. In the third exceptic n the married woman might have enjoyed the land at different times before the Act, but the strict reading does not require more of her than that she should have been in actual possession or enjoyment at the time of the passing of the Act. To permit any single act of enjoy- ment previous to the Act to be constructively extended to the time of the passing of the Act seems to be strangely at variance with its declaration that there must have been actual and not constructive possession, or actual and not constructive enjoyment, on the day on which it came into force. This leads to another consideration at variance with the principle of Elliott v. Brown. The statute provides two alternatives, actual possession or actual enjoyment. If it is necessary in any case to establish actual possession by the married woman it will not suffice to prove constructive possessioxi. Hence, when ^he married woman, or any one claiming under her, relies upon actual possession, it will not be sufficient to establish in evidence isolated acts of ownership, even though they are contrary to the terms of the deed. Because sut-h acts of ownership may be exercised concurrently with similar acts of ownership by the grantee ; and in such a case she is not in fictual possession unless each individual act of ownership is constructively extended beyond its actual duration in order to make her successive possessory acts equivalent to actual possession. If suc- cessive isolated possessory acts are equivalent to ouster of her grantee, then similar acts on the part of the grantee must in turn amount to ouster of the married woman ; and unless she has at the time of the passing of the Act phyb.cal possession of the land she cannot, where such a state of facts occurs, be deemed to be in possession within the meaning of the Act. To aay that she is constructively in possession by virtue of her paper title, and that isolated acts of ownership may be so constructively extended, is 240 CONVEYANCES BY M.V.RRIED WOMEN. against the spirit of the act which retrospectively declares the void deed to have passed the estate to her grantee, regards the grantee, therefore, as having been in construc- tive possession, and requires actual possession, which must mean exclusive possession amounting to ouster of her grantee, in order to prevent the operation of her deed. This is strikingly in contrast with the first exception in the statute, where the void deed and a subsequent valid deed are in competition, the grantee in the void deed being required to establish three years' actual possession as against the constructive possession of the grantee claim- ing under the valid deed. Where the conflict is between the grantee and the married woman, possession need not have been taken by the grantee at all, but actual posses- sion must have been had by the married woman at the time the Act was passed. If we admit any possessory acts short of continuous possession by the married woman to satisfy the statute, simply because they are contrary to the terms of her deed, then the principle being admitted, the evidence tends only to show the degree in which owner- ship has been exercised. And it will suffice upon this reasoning to show one individual act of ownership con- trary to the terms of her deed, which being constructively extended beyond its actual duration puts the married woman constructively in possession at the time of the passing of the Act and so prevents its operation. This, it is submitted, was not the intention of the legislature when it expressly provided for actual possession by the married woman or those claiming under her at the date of its enact- ment. It is therefore submitted that if actual possession is relied upon it must be that continuous, physical, open and notorious possession which amounts to ouster of the person claiming under the defective conveyance. But the statute provides another alternative. Actual enjoyment of the land by the married woman at the date of the passing of the Act will be sufficient to prevent its DEFECTIVE CERTIFICATES. 241 operation. This actual enjoyment must be the equivalent of actual possession. The assumption that any enjoyment less than the equivalent of actual possession will suffice is illogical ; for actual possession is only a high degree of actual enjoyment, and the alternatives of the statute are upon this hypothesis a greater or less degree of enjoyment. If then any enjoyment of the land not equivalent to actual possession will satisfy the statute, it will always be sufficient to give evidence of such enjoyment, and consequently it will never be necessary lo give evidence of actual possession or its equivalent. In other words, it will never be necessary to give evidence of the greater degree of enjoyment, when evidence of a leras degree will suffice. Therefore the provision of the statute that actual possession shall prevent its operation is entirely superfluous, and we must regard the legislature as having provided for a quantum of proof which was never intended to be given. / Again, if the evidence of actual enjoyment amounts to what may otherwise be called constructive possession, then it is not sufficient, for the statute requires that if possession is relied upon, it must be actual possession. And if, when actual enjoyment is relied upon, a succession of isolated possessory acts is shown, the statute is still not satisfied, because it requires a greater degree of possession, namely, actual possession, which as we have seen, must mean phy- sical exclusive possession. It may be truly said that actual enjoyment must always be something less than actual possession ; and no doubt it is difficult to say what actual enjoyment there can be which would be the equivalent of, without being in fact, actual possession. Eat it is not impossible to imagine such en- joyment. For instance, if a dam were built upon a stream below the land, so as to pen back the water and cause it to overflow the land, there would be actual and continuous enjoyment of the land equivalent to, without in fact being, A.T.— 16 242 CONVEYANCES BY MARRIED \\'OMEN. actual pedal possession ; and no doubt other modes of en- joyment might be suggested. - . - ^ . . . . '. . ,, 2. Joinder of the Husband. It is necessary in all cases in which a married woman conveys that her husband should join in the conveyance as a party [e) unless the property conveyed is her separate estate, either statutory or equitable, or unless his concur- rence is dispensed with by order of a Judge. The husband should be a granting party, for the purpose of conveying his interest in the land (/). And it was held before The Conveyancing and Law of Property Act, 1886, that he could not accept a conveyance from his wife although he was a party thereto and executed it. His concurrence was necessary for her protection, and by becoming his wife's grantee he was placed in an adverse position to her, and so she had no protection from imposition or improvidence (g). But now a wife may convey freehold land direct to her husband, and a husband to his wife (/i). And it appears that a married woman whose husband is Tinder imprisonment for felony may during his imprison- ment convey as a, feme sole (i). ' ^ The husband alone can convey his marital i?^ierest in the land of his wife {j) ; and so where a conveyance of her * property was made by a wife who was under twenty-one years of age, her husband joining, it was held sufficient to convey the husband's interest although void as to the wife's (k). The consolidated statute respecting the property of (e) R. S. O. cap. 127, 8ec. 3; Foster v. Beall, 15 Gr. 246. (/) Doe dem. McDonald v. Twigg, 5 U. C. R. 167. {g) Ogden v. Mc Arthur, 36 U. C. R. 246. {h) 40 Vict. cap. 20, sec. 6. (i) Crocker v. Sowden, 33 U. C. R. 397. (j) Allan V. Levesconte, 15 XJ. C. R. 9. (jfc) Doran v. Reid, 13 C. P. 393. JOINDER OF THE HUSBAND. 243 married women (l) did not give to a married woman the right to dispose of her property without her husband's con- sent, nor did it affect his estate by the curtesy ; and it was not intended to effect any change in the mode of con- veyance by married women (m). The law remained thus until the 2nd of March, 1872. And therefore, as to all property acquired by a married woman during coverture, or owned by hei at the time of her marriage, before that date, it was and still is necessary that the husband should join as a granting party in her conveyance. The Married Women 8 Propeity Act, 1872, made a change in the law which upon the revision of the statutes in 1877 was restricted in its operation to women married after the 2nd March, 1872 (?i). And so, as to women married on or before that date, who acquired property on or after the 31st of December, 1877 (the day on which the Revised Statutes came into force), it is necessary that their husbands should j( .i- them in conveying such property ; for their position is the same as it was under the consolidated statute (c), though for a time (from 2nd March, 1872, to 31st December, 1877) they were emancipated, and could acquire and dispose of land as separate estate. :^ > ,„ lui By The Married Women'' s Real Estate Act{p)^ it is declared that every married woman of the full age of twenty-one years may by deed alien her real estate as fully and effectually as she could do if she were a feme sole ; but no such conveyance was to be valid unless the husband was a party to and executed the conveyance. By the same Act {q), except where the Court of Chancery (now the High Court of Justice), or any person intrusted [l) C. S. U. C. cap. 73. [m) Emrick v. Sullivan, 25 U. C. R. 105. in) R. S. O. cap. 125, sec. 4. (o) R. S. O. cap. 125, sec. 3. ip) R. S. O. cap. 127, sec. 3. (?) R. 8. O. cap. 127, sec. 4. 244 CONVEYANCES BY MARRIED WOMEN. with the commitment of a lunatic, idiot or person of un- sound mind, is the protector of a settlement in lieu of her husband, if a husband is, in consequence of being a luna- tic, idiot, or of unsound mind, or is, from any other cause, incapable of executing a deed, or if his residence is not known, or he is in prison, or is living apart from his wife by mutual consent, or if there is in the opinion of the Judge any other cause for so doing, a Judge may, on the appli- cation of the wife, upon such evidence as to him seems meet, and either ex parte, or upon such notice to the hus- band as he deems requisite, dispense with the concurrence of the husband, in any case in which his concurrence is required by the Act in his wife's conveyance; and the conveyance is as valid and effectual as if the husband had been a party. The application was to be made to a Judge of the High Court or to a Judge of a County Court, or a Junior or Deputy Judge. The Referee in Chambers had not power to make such an order (r), and consequently the Master in Chambers had no jurisdiction. Provision was also made by the Act for registration of the order. That part of the Act which required the joinder of the husband was repealed by The Married Women's Propertij Acty 1884 (s), which came into force on the 1st July, 1884, without any saving clause as to existing rights. The result of the repeal is to leave the bare enactment that a married woman of full age may convey as fully and effectually as a feme sole. No formality will henceforth be required in her conveyance which is not required in a conveyance by a feme sole. But since in every case in which a husband has any control of his wife's property he has also a substantial interest in the land it will still be necessary to join him as a granting party in order that the conveyance may operate upon his interest. (r) He Nolan, 6 P. K. 115. («) 47 Vict. cap. 19, sec. 22, latter part. •J JOINDER OF THE HUSBAND. 245 It is necessary, as we have seen, that where the joinder of the husband is required he should join as a granting party in order to convey his own interest. By The Statute Amend- ment Act, 1887 {t) the Act of 1884 is amended by declaring that *' Every conveyance made since the 29th day of March, 1873, or which shall hereafter be made by a married woman of or afifecting her real estate which her husband signed or executed or shall sign or execute is and shall be taken and adjudged to be valid and effectual, to have passed or to pass the estate which such conveyance professed or shall profess to pass of such married woman in said real estate." The object of this amendment was probably to validate those conveyances by married women in which their hus- bands had joined as assenting but not as granting parties. But it professes to make them effectual only as regards the estate of the married women ; and it may still happen that a husband who has signed such a deed might acquire his estate by the curtesy on his wife's death. Though the amendment is general enough in its terms to cover all conveyances by married women, wt .ther of sep- arate estate or land subject to marital control, and soinfer- entially to require the joinder of the husband in every conveyance by his wife, it is most probable that it will be construed to apply only to those cases in which the hus- band is a necessary party (w). Where the husband's execution of the conveyance is ne- cessary and cannot be procured, there appears to be no mode of conveyance by the wife alone (except as to her own estate in the land) on account of the repeal of the Act permitting application to be made for a judge's or- der allowing her to convey alone. No provision was made for existing cases unless indeed The Statute Amendment (0 50 Vict. c&p. 7, sec. 23. (u) Upon the same reasoning as led the Comi of Appeal to hold that the Act requiring the joinder of the iiusband in his wife's conveyance vhich under the foregoing Act may be conveyed or assigned by any party, or over which duch party has any disposing power which he may without the assent of any other person exercise for his own benefit, shall be liable to seizure and sale under execution against such party, in like manner and on like conditions as lands are by law liable to seizure and sale under execution ; and the sheriff selling the same may convey and assign the same to the purchaser in the same manner and with the same effect as the party himself might have done (/). But a right or option to purchase contained in a lease which was sold under an execution was held not to pass to the purchaser (m) ; nor is a vendor's interest after he has made a contract for sale exigible under a writ against lands (w). And a mortgagee's right to redeem his mortgage after he has pledged it cannot be so sold (o). Where a husband and wife take jointly, it has been held that an execution against the husband will not bind his interest in the land, because they take by entireties, and his estate is not alienable without his wife's consent (p). But in that case it is doubted in the dissenting judgment whether a married woman who can acquire statutory separate estate does not in such a case take the estate or interest as Q,femr sole J and this view may ultimately prevail {q), in which event the interest of the husband would also be alienable at his pleasure and subject to execution. The cases in which an equity of redemption is bound by execution and consequently' may be sold have V ' before treated of (r). The effect of a sale of such an interest is (f) See Leith R. P. Stat. 65 et seq. and 316 on these statutes, (u) Henrihan v. Gallagher, 2 E. & A. 338. {r) Parke v. Riley, 12 Gr. 69 ; 3 E. ) Griffin v. Patterson, 45 U. C. R. 536. (g) See Re March, L. R. 24 Ch. D. 222; 27 Ch. D. 106. (r) Ante p. 128, et seq. 260 JUDICIAL TITLES. declared by the statute (s) to be to vest in the purchaser his heirs and assigns all the legal and equitable interest of the mortgagor in the mortgaged lands at the time the writ was placed in the sheriff's hands as well as at the time of the sale, and to vest the same rights as the mortgagor would have had if the sale had not taken place, and the purchaser may pay and discharge any mortgage charge or lien which at the time of the sale existed upon the lands in like man- ner as the mortgagor might have done, whereupon he acquires the same estate right and title as the mortgagor would have acquired. And it is further declared that any mortgagee of the lands (being or not being plaintiff or defendant in the judgment whereon the wTit issued under which the sale took place) may be the purchaser, and shall acquire the same estate as any other purchaser ; but in the event of his becoming a purchaser he must give to the mortgagor a release of the mortgage debt. And if any other person becomes the purchaser, and the mortgagee enforces payment of the mortgage debt against the mortgagor the purchaser must repay him, and on default of payment for one month after demand the mortgagor may recover the amount from the purchaser in an action of debt ; and until the debt and interest have been repaid the mortgagor has a charge therefor upon the land. It has been held that the effect of a purchase by a mortgagee under this statute is to satisfy the mortgage, the mortgagee being deemed to bid the amount of the mortgage and also the actual sum bid over and above his mortgage. The exacting of a release is a mere consequence of the satisfaction of the mortgage (f). By The Execution Act it is providec^ ■ 'at before a sale under a writ the sheriff shall publish an advertisement of sale in the Gazette at least six times, specifying the particular property to be sold, giving some reasonably definite descrip* (s) R. S. O. cap. 66, sec. 36. [t) Woodruffs. Mills, 20 U. C. R. 51. SALES UNDER EXECUTION. 261 tion of it, the names of the plaintiff and defendant, and the time and place of the intended sale. He shall also for three months next preceding the sale publish such advertise- ment in a public newspaper of the county in which the lands lie, or shall for three months put up and continue a notice of such sale in the office of the Clerk of the Peace, or on the door of the Court House or place in which the Court of General Sessions of the Peace for such county is usually held. Errors and defects in the advertisement will not avoid the sale (u), even though the purchaser is one of the execution creditors (r). Nor will irregularities in the pro- ceedings before judgment affect the title of a purchaser (w). And though it is irregular to issue a writ against lands until after the return of a writ against goods, a sale under such a writ will not be disturbed (x). And it has been held that 8 sale of a whole farm for a debt which the sale of a portion would have satisfied will not avoid the sale (y). So long as there is a valid judgment subsisting and un- satisfied, it will support the execution, and the execution will support the sale. There must, however be a judgment unsatisfied, and a plea setting up a writ without averment of the judgment is bad {z). But a writ is sufficient evidence without proving the judgment as against one claiming under or in privity with the debtor (a). And where the judgment is afterwards reversed for e^ror the defendant can recover the money only and not the land (b), (u) Lee V. Hoicen, 30 U. C. R. 292. (i) Patterson v. Todd, 24 U. C. R. 296. {iv) Doe d. Bonlton v. Ferguson, 5 U. C. R. 615. (x) Doe d. Spaford v. Uroicn, 3 O. S. 90 ; Meyrs v. Meyers, 9 U. C. R. 465. See also Doe d. Tiffany v. Miller, 6 U. C. R. 435. iy) Doe d. Hagennan v. Strong, 4 U. C. R. 510. U) McDonell v. McDonell, 9 U. C. R. 259. (a) Douglas v. Bradford, 3 C. P. 459. (b) Doe d. Hagernian v. Strong, 4 U. C. R. 516. 262 JUDICIAL TITLES. The writ must be current when acted upon in order to support the sale (c), that is to say something must be done by way of inception of execution during its currency, and the proceedings may then \)e carried to completion although the writ has expired in the meantime {d). Going upon the land to demand payment and declaring that it will be sold if payment is not made is not an inception of the execution (e). But it has been held that going to the debtor and obtaining from him a list of his lands owned by him and liable for sale under the writ, and including in the list the land of the debtor upon which he was at the time of furnishing the list, was an inception of the execution (/). And now by statute (g) the advertisement in the Gazette during the currency of the writ is deemed to be a sufficient commence- ment of the execution to enable the same to be completed by a sale and conveyance of the lands after the writ has become leturnable. It was formerly the law that a sheriff who commenced to execute the writ could complete it by sale and conveyance^ even if he had vacated office at the time of the sale(/0. But now by the Execution Act (i), if the Sheriff goes out of office during the currency of any writ of execution against lands, and before the sale, such writ shall be executed and the sale and conveyance of the lands be made by his suc- cessor in office. And by another Act {j ), in case of the death, resignation or removal of any Sheriff, or of any Deputy Sheriff, after he has made a sale of lands, but before he hi?.8 made the deed of conveyance of the same to the ;: ..chaser, the deed or conveyance shall be made to (c) McDoneil v. McDonell, 9 U. C. R. 259 ; Doe d. Greenshields v. Garroio\ 5 U. C. R. 237; Doe d. Gardiner v. Jmm, 2 E. & A. 188. (d) Doe d. Tiffany v. Miller, 6 U. C R. 431. (c) Bradbum v. Hall, 16 Gr. 518. ' (/) Doe d. Tiffany v. Miller, 6 U. C. R. 426, and see S. C, 5 XJ. C. R. 79. {g) R. 8. O. cap. 66, sec. 42. (h) Doe d. Tiffany v. Miller, 5 U. C. R. 79 ; 6 U. C. R. 432. (t) R. S. O. cap. 66. sec. 43. (j) R. S. O. cap. 1^ sec. 48. SALES UNDER EXECUTION. 263 the purchaser by the Sheriff, or by the Deputy Sheriff who is in office acting as Slieriff as aforesaid, at the time when the deed or conveyance is made ^k). The Sheriff'^ deed, being but a completion of the sale, is effectual to convey only the part actually sold, and if it contains more by description, the amount actually sold may be shown by parol evidence (1). The deed is a conveyance of the debtor's interest in the land, and not merely a release Cm), and will relate back to the day of sale for the purpose of defeating intermediate conveyances (n). And, being the sale of the debtor's in- terest alone, it will not affect his wife's dower (o). It is prima facie evidence that the writ was delivered to the Sheriff, that he took the lands in execution and sold them. The seizure of the lands is implied in the sale, and the sale is proved by the conveyance in which the formalities ob- served are recited by tbe Sheriff (p), and to which credit is prima facie given [q). The debtor in possession of lands sold under a writ becomes quasi tenant at will to the purchaser, and cannot dispute his title (r). By the Registry Act (s) it is declared that all deeds of lands sold under process shall be registered within six months after the sale of the lands ; otherwise the party claiming under any such sale shall not be deemed to have premier v^ed his priority as against a purchaser in good faith,* who has registered his deed prior to the registration of the deed from the sheriff. (k) Miller v. Stitt, 17 C. P. 559. (I) Doe d. Tiffany v. Miller, 5 U. C. R. 79. (nt) Doe d. Dissett v. McLeod, 3 U. C. R. 297. (n) Gnviller v. Beaton, 12 C. P. 519. See also Burnham v, Daly, 11 U. C.R.211. (o) Walker v. Poicers, R- & J. Dig. 1125. (p) Doe d. Spafford v. Broicn, 3 O. S. 90. [q] Mitchell V. Greenicood, 3 C. P. 465. (r) Doe d. Arjnour v. McEtcen, 3 O. S. 493. («) Sec. 76. La* 264 SALES UNDER POWERS IV MORTOAOEi;. CHAPTER XIV. SALES UNDER POWERS IN MORTGAGES. 1. Form and effect of the power. 2. Notice of sale. 3. Sale and conveyance. 1. Form and effect of the powpr. Powers of said in mortgages are usually created by con- veying in fee to the mortgagee, with a proviso for redemp- tion, accompanied by a declaration that if default is made in payment it shall be lawful for the mortgagee, his heirs or assigns, to sell after certain notice. A power may also be created by limiting the estate to the mortgagee for a term of years with a proviso for redemption, and subject thereto, to the use of trustees in fee upon trust to sell ; or b\ Tiiting it to trustees in trust for sale if the money is nov paid upon a certain day, with a proviso for redemption. Attention will be more particularly directed to the first as it is the most usual mode in Ontario, and is that adopted in the Short Forms Act. The power is by the Short Forms Act reserved to the heirs of the mortgagee and not to the personal represen- tatives, as it should be. For the latter are entitled to the monoy ; and though the heirs formerly held the legal estate in trust for the parties entitled to the money, the personal representatives had, even before The Devolution of Estates FORM AND T5FFECT OF THE POWER. 265 Act, the right to discharge and assign the mortgage (t). To avoid doubts which arise in consequence of the latter Act. as well as for the reason already stated, it is strongly recommended that the power should be reserved to the personal representatives of the mortgagee; and that provision should be made for giving notice to the personal representative of the mortgagor, or if no personal repre- sentative shall be appointed within a reasonable time after death of the mortgagor, then that the power should be exercisable without notice. It is essential that some such liberty should be given, as if the notice is to be given to the personal representative only, the power is inoperative until one is appointed (m). The Short Forms Act provides that the power may be exercised by the assigns of the mortgagee. It is most important that the short form should, if used, be strictly followed, so as to retain this right, or if another form is used, that the power should be extended to the assigns of the mortgagee, so that in case of an assignment of the mortgage there may be no doubt of the existence of the right in the assignee to exercise the power. For though the assignment of the mortgage may convey the land and the debt, it is doubtful whether it involves the transfer of the power as an inseparable incident of the estate (v). Where there has been a trust for sale limited to trustees and the survivor and the heirs of the survivor, and no provision has been made for appointing new trustees, it has been argued that assigns cannot sell, because a personal confidence has been reposed in the trustees. But the fallacy of this reasoning has been pointed out. For though there may be a personal confidence reposed in the trustees or in the survivor, it cannot be assumed that the author of the trust placed any personal confidence in the heir of the (t) R. S. O. cap. 99, see. 6. (m) Parkinson v. Hanbury, L. R. 2 H. L. at p. 18. (r) Re Gilchrist & Island, 11 Ont. R. 539. 266 SALES UNDER POWEBS IN MORTGAGES. survivor; for it could not be known beforehand which of the trustees would be the survivor or who would be his heir (w). And it has also been pointed out that where heirs alone are named, if the trustee devised the estate to the person who is his heir the latter would, under the Wills Act, take as devisee and not as heir, pnd so being an assignee could not execute the trust which he would have been otherwise able to execute as heir {x). Notwithstanding these objections, the authorities at present withhold the power from assigns if not named (y). A distinction must be drawn again between a trust and a naked power. "Where power is given to divert an estate from a previous holder, he who holds the property subject to the power has a right to say that the power shall be exercised moclo et forma {z). A mortgagee with power of sale does not occupy either of these positions ; for he has a beneficial interest in the land and its proceeds, and he holds the power as incident to his security and to enable him to realize speedily thereon ; and as Sir John Romilly, M.R., said, '*it is manifestly also a most inconvenient doctrine to hold that a power is separated from, and is not incidental to and united with, the legal estate wherever it may go " {a). When the short form is used care must be taken not to omit from it, by way of qualification or exception, any term of the power. For it has been held that if the short form provides for a sale without notice, that is a deviation from (). In such a case the words used in the instrument will not derive any aid from the long form but will receive the bare construction which the words themselves will sustain. Hence the mortgagee being the only person named will be the on'y person entitled to exercise the power (c). When the mortgage deed contains a stipulation that the purchaser under the power shall not be bound to enquire whether notice ha&'been given or default made, or other- wise as to the validity of the sale, bat that any sale by the mortgagee shall be valid as regards the purchaser at all events, and that the mortgagor's recourse shall be against the mortgagee only for damages, a bona fide purchaser v ill take a good title on a sale provided that he has no notice of irregularities. But such a clause will not protect a purchaser who has notice of an irregularity (d). When the power of sale is exercisable only upon notice, and the right to sell does not therefore arise until notice has been given, it has been suggested that an attempt to sell without notice is not in fact a sale, and the party offering to buy is not a purchaser and cannot therefore claim protection under this proviso (e). And it is clear that if a purchaser discovers that the event has not happened upon which the mortgagee may sell he may rescind his contract to purchase (./"). And if the mortgagor has created a second mortgage he cannot thereafter as against the subsequent incumbrancer waive the irregularity (g). But in one case (//) lie Gilchrist d- Maud, 11 Out. 11. 537. (c) Ibid. (d) Parkinson v. Hanbiiry, 2 D. J. & S. at p. 452. {e) Ford V. Heely, 3 Jar. N. S. 1116. (f) Forster v. Hoggart, 15 Q. B. 155. ig) Ibid. 268 SALES UNDER POWERS IN MORTGAGES. where there was a proviso that upon any sale purporting to he made in pursuance of the power, the purchaser should not be honnd to enquire whether default had been made, or as to the propriety or expediency of the sale, and that notwithstanding any impropriety or irregularity in any such sale, the same should, as regarded the protection of the purchaser, be taken to be within the power, it was held that a bona fide purchaser without notice took a good title though the mortgage had in fact beon satisfied at the time of sale (h). It has been held thai a po>ver of sale contained in a mortgage will not be implied in a subsequent mortgage deed by which the interest then due is converted into principal and the total amount charged again upon the land (i), unless there i^ something in the subsequent mortgage to indicate that the mortgagee is to retain the benefit of the power (,/). But it appears from recent authority that unless there is something to forbid the presumption the mortgagee will not be deemed to have abandoned the power (A). And by a recent statute it is enacted that when a mortgage deed does not contain a power of sale the mortgagee shall have a power of sale after default for six months in payment of principal or any interest, or after omission to pay any insurance premium (0- It has been Held that a power of sale may be exercised though the mortgagee has been in possession without acknowledgment long enough to extinguish the title of the mortgagor ; and this is said to be a convenient mode of conveyance for the mortgagee to adopt as it relieves him from the obligation of proving his possessory title [m). But when a mortgagee so conveys he does so as owner and {h) Dicker v. Angerstein, L. R. 3 Ch. D. 600. (t) Curling v. Shuttleworth, 6 Bing. 121. ( j) Young v. Roberts, 15 Beav. 558. {k) Boyd V. Petrie, L. R. 7 Ch. App. 385. (I) 42 Vict. cap. 20. (w) Re Alison, L. R. 11 Ch. D. 284, 290, 295. NOTICE OF SALE. 269 not as mortgagee, and is not bound to account for the surplus (»). This position however is not safe from criti- cism. Mr. Justice Strong has said, "It must, however, be remembered that the power of sale "s a power to sell and convey the equity of redemption only, and that the conveyance of the mortgagee for the purpose of carrying out a sale under it operates on the legal estate as a conviivance strictly and not as the execution of a power, from whence It follows that if the equity of redemption is go^ e by foreclosure or otherwise the power is also ext''^ • guished " (o). And where a mortgagee who had forech 1 made an agreement to sell, and by inadvertence a condition of sale was inserted providing that as the vendor was a mortgagee with power of sale, she would enter into no cov- enant for title except the usual covenant against incum- brances, the court on a bill filed by the purchaser for specific performance refused in the exercise of its discretion to decree a conveyance under the power of sale which was insisted upon by the purchaser (p). The power however may undoubtedly be exercised after defective proceedings for foreclosure ; and a conveyance thereafter made may be supported as a conveyance under the power of sale though it in fact recites the foreclosure proceedings and professes to be a conveyance by the mort- gagee as absolute owner {q). '?. Notice of sale. When the power provides that it may be exercised without notice, no doubt the agreement of the parties will govern ; but it has been said that such a power is oppres- sive, as it puts the mortgagor completely at the mercy of («) Ibid. (o) Kelly V. Imperial L. d- £. Co., 11 S. C. R. at p. o28. And see H'atson V. Mamtou, 4 D. M. & G. 230. {p} Watson V. Marston, 4 D. M. & G. 230. iq) Kelly v. In,perial L. d' I. Co., 11 S. C. R. 51C. 270 SALES UNDER POWERS IN Mv/RTGAGE8. the mortgaf^ee and enables the latter at any moment to extinguish the right of redemption without notice to the mortgagor (r). And the mortgagee must in all cases act not in an arbitrary manner, but with reason, prudence and discretion. Hence, his proceedings would be very strictly scrutinized if he undertook to sell without notice. Where a power of sale was vested in a trustee for sale, the Court restrained a sale on the motion of the mortgagor until the trustee had notified both the mortgagee and mortgagor ; though in the same case a motion to restrain the mortgagee from proceeding without notice made under the apprehen- sion that the power was vested in the mortgagee was refused (s). Where notice is required to be given, but no length of time for the notice is specified, it is apprehended that a reasonable notice must be given ; and reasonable notice would probably mean a notice not only giving a reasonable time but also being given under such circumstances that the mortgagor might reasonably be able to comply with the demand for payment (t). The power contained in the statutory short form iy exercisable onl}^ after giving written notice ; and the con- sequence is that tlie mortgagee cannot lawfully proceed to sell until the notice has been duly given. A preferable mode of framing the power is to make it operative without notice, and add a covenant by the mortgagee not to exer- cise the power until he has given notice ; or to provide that if default is made for a period longer than the period of default for which sale may be had on notice, then that the power may be exercised without notice (m). • Where a power was exercisable after default made for one month and upon one month's notice of sale, it was held that (r) Miller v. Cook, L. R. 10 Eq. at p. 647. («) Amm., 6 Mad. 10. (t) See Massey v. Sladen, L. R.4 Ex. 13. (m) Leith R. P. Ste,t. 373, 424 n. (i). NOTICE OF SALE. 271 no proceedings for sale could be taken until after the expira- tion of the month's default, i. e., that the notice of sale could not ran concurrently with the period of default (r). But the authority of this case is doubtful ; for it has been held that there is no objection to a mortgagee's entering into an agreement to sell before the expiration of the time given by the notice of sale, the agreement being conditional upon non-redemption by tlie mortgagor in the meantime («') ; and where a six months' notice was served after its date, but the sale did not take place until after the expiration of six months from the service of the notice, it was held to be valid (x). And where a powe/ was "provided that the mortgagees on default of payment for three months, may enter on and lease or sell the said lands without notice," and was followed by a covenant not to sell until one month s notice of sale should be given to the mortgagor, it was held in an action by the mortgagor to set aside a sale, that the notice might be given at any time after default, provided that no sale was effected until after the expiration of one month from the service of the notice on the mort- gagor; and that the purchaser took a good title, the only redress of the mortgagor being under the covenant {y). The notice should intimate the purpose of the mortgagee in giving it. And so, a notice that unless payment were made within three months from the service, the mortgagee would '' institute legal proceedings to gain possession,' was held ineffectual to support a sale. It should be given to the persons indicated in the power which should be followed strictly in this respect if the giving of the notice is a con- dition of the exercise of the power. So, where a power required the notice to be given to the mortgagor, '* his heirs, executors or administrators," it was held that a {v) Gibbons v. McDougall, 26 Gr. 214. (tf) Major V. Ward, o Ha. 598. {x) Metters v. Brown, 9 Jur. N. S. 958. (y) Grant v. Canada Life Ass'ce Co., 29 Gr. 256. 272 SALES UNDER POWERS IN MORTGAGES. notice of sale given after the mortgagor's death should have been served upon both the heir and the administrator, the disjunctive conjunction having reference only to the per- sonal representatives and not to them and the heirs (z). When the power requires notice to be given to the mort- gagor, his heirs or assigns, and the mortgagor has created a second mortgage, it is not sufficient to give a notice to the mortgagor alone. It should be served upon the mort- gagor and his assigns, or upon the assigns and not upon the mortgagor {a). • By the Short Forms Act the power of sale is exercisable upon notice to the ** mortgagor his heirs or assigns." By The Derolvtioii of Estates Act, 1886, it is declared that the land of any person dying on or after the 1st day of July, 1886, shall " notwithstanding any testamentary disposition, devolve upon and become vested in his legal personal representatives from time to time," to be distributed as personalty. The result of this enactment was to raise a doubt as to the construction of all obligations imposed by conveyances upon or in favour of heirs. And to allay the doubt a remedial Act was passed which declares that, " In the case of a person dying after the 1st of July, 1886, his personal representative for the time being shall, in the interpretation of any statute of this province, or in the construction of any instrument to which the decensed was a party or in which he was interested, be deemed in law his 'heirs and assigns' unless a contrary intention appears" {b). If the meaning of this very inartificial enactment be that wherever the phrase " heirs and assigns " occurs it shall signify the personal representative, then it has no application to the present case ; for the expression in the short form is " heirs or assigns." If on the other hand it (z) liarth'tt V Jull, 28 Gr. 142 It would have been otherwise if tlie words had been " bis heirs, executors or administrators, or some or one of them." (a) Hoole v. Smith, L. R. 17 Ch. D. 434. (ft) 50 Vict. cap. 7, sec. 35. NOTICE OF SALE. 273 was intended that the personal representative was to bo both an heir and an assign, then service on him in either capacity may be sufficient. It may also be a question, if the enactment makes the personal representative the heir, whether those who were formerly heirs are not now divested of that character. It has been held that The Devolution of Estates Actj 1886, ha3 not repealed Locke King's Act, and consequently that, notwithstanding the devolution of the land upon the executor, a devisee ulti- mately takes the estate subject to existing mortgages (c). Though neither devisees nor next of kin now derive title immediately from the defimctus, but directly by conveyance from the executor or administrator (d), they may yet, as a result of this decision, have a right to redeem, and so should be served with notice of sale. In view of the great uncer- tainty which prevails under these statutes any attempt to sell under a power exercisable upon notice to the heirs or assigns of a mortgagor must be extremely hazardous unless both the administrator and heirs, in the case of intestacy, or the executor and devisee, in case of a devise, are served. And inasmuch as a power exercisable upon notice to the personal representative is inoperative until there has been one appointed (e) it is very doubtful whether a mortgagee could make a title under his power until that event. . It will be observed also that the power of sale is reserved by the Short Forms Act to the mortgagee and his heirs instead of his personal representatives ; and when the mortgage is so drawn the same difficulty arises as to the person who should give the notice on the death of the mortgagee as are met with in finding a person to receive it on the death of the mortgagor. {c) McLfony. Mai>ou, 13 Ont.'R.12o. ^ (d) See Re Reddam, 12 Ont. R. 781 ; 49 Vict. cap. 22, sec. 0. (ej Parkinson v. Hanbiinj, L. R. 2 H. L. at p. 18. ,_, A.T.— 18 274 SALES UNDER POWERS IN MORTGAGES. The notice may be served upon the person indicated in the power though he is insane (f) or is under age {g). It need not be given to persons claiming paramount to the mortgagor and not through or under him. Where they have title paramount to the mortgagee the latter can of course sell subject to their interests. But where a mort- gagor took by a conveyance which was void as against creditors and then conveyed to the mortgagee without notice, and the conveyance to the mortgagor was afterwards set aside as against his creditors, it was held that the mortgagee was not obliged to give notice of exercising the power of sale to the creditors of the mortgagor, as his title was not affected by their decree but was paramount to their title, though they might have had a right to redeem the mortgagee and to require him to account for the proceeds of the sale (70. By the Short Forms Act the notice is to bo served upon the mortgagor, his heirs or assigns, "either personally or at his or their usual or last place of residence within this Province." It was held by a Divisional Court, reversing the decision of Proudfoot, J., that it was not essential that the mortgagor should be out of the Province in order that service might be made at his last place of residence (i). The decision of this question was not necessary for the disposal of the motion before the Court, which was an appeal from the certificate of a taxing master allowing the costs of so effecting service, and was ultimately determineu by the Court of Appeal on the sole ground that the solicitors (/) Robertson v. Lockic, 15 Sim. '28.'> Shadwell, Y. C, said that the party who served a notice of dissolution of partnership was not bound to tind understanding for the person on whom it was served. See also Mi'llersh v. Keen, '11 beav. 230. (r/) Barth'tt V. JnU, 28 CJr. U. If'ooih v. Hj/de, 11) W. R. 339. In Traceij v. Lawrence, 2 Drew. i03, tlie notice was served on the infaut and her guardian. {h) Major- V. Wtird. o Ha. 5U8. (t) O'Donohoe v. Whitty, 2 Ont. R. 421. NOTICE OF SALE. ,c : 275 had not been so negligent in proceeding as to disentitle them to costs against their cUent. The point cannot there- fore be said to be settled. '-: i^ •- - Service may be effected in three different modes under this provision, (1) b}- personally serving the mortgagor, (?i) by leaving the notice with a grown-up inmate at his usual place of abode in the Province, by analogy to service of proceedings in the Court of Chancery, and (u) by leaving it at his last place of residence in the Provnice (j). It is with regard to the last mode of service that the difficulty arises. If the power required the notice to be left at the last known place of abode, it would be complied w'th by leaving it at such a place whether the mortgagor w^ere at tlie time within or without the Province (k). The words as they stand, looking at their bare meaning, are ambiguous. The '* last place of residence within the Province " may mean either the last place at which the mortgagor resided ill the Province before leaving it, or the last, i. e., the present of several places in the Province at which he has resided at different times. Adopting the latter construc- tion, we find that it produces a further ambiguity. If he has occupied m.ore than one place of residence at different times, the last is necessarily his present place of residence. For, if we regard as the last the one which he occupied immediately before his present place of residence, then when he has occupied several and is still living in the Province, it will always be sufficient to leave the notice at the one which he occupied immediately before his present place of residence. But it could not have been intended that the notice should be sufficient if left at the place where from its very nature and description the mortgagor would not be found. On the other hand, it cannot be said that the usual place of residence and the last place of residence (j) Per Boyd, C, lu O'Donohoc v. Whittij, "2 Out. \\. at p. 480. [k) Major v. Ward, 5 Ha. 51)8. 276 BALES UNDER I :WERS IN MORTGAGES. are the same within the meaning of the statute, or it would not have mentioned both. This ambiguity is avoided by interpreting the last place of residence in the Province to mean the last place in the Province at which the mortgagor resided before leaving it ; and the usual place of residence to mean that at which he is usually or most frequently found, if he is a person who moves about. This leads us to the conclusion that if the mortgagor is within the Province the notice must be personally served on him or left at his usual, that is, his present place of residence. This was denied in O'Donohoe v. Whitty, and it was said that it would be unreasonable to compel the mortgagee to undertake a probably fruitless search for the mortgagor if his whereabouts were unknown. But it may be observed that the difficulty or even the impossibility of effecting service according to the terms of the power is no reason for adopting some other mode not expressly authorized thereby. If the mortgagor never had a place of residence within the Province, it is obvious that personal service alone would suffice, and the inability to find the mortgagor would be an effectual bar to the exercise of the power. So, as we have seen, where the power requires notice to be served upon the personal representative of the mortgagor, it is inoperative after his death unless a person.>,l repre- sentative is appointed (1), When a mortgagee has given a notice he may if he please, waive it; but if he does waive it he must give a new notice if he desires to take advantage of the same Qc%uU (w). But a mortgagor cannot waive a notice, when notice is necessary, so as>to enable the mortgagee to sell, if be has created incumbrances subsequent to the mortgage under which the sale is proposed (71). (t) Parkinson v. Hanhunj, L. R. 2 H. L. at p. 18. ' (m) Tommey v. White, 3 H. L. C. 168. - (71) Forster V. Hoggart, 15 Q. li. Ibo. - KOTICE OF SALE. 277 By The Ontario Mortgage Act, 18S4 (o), it is enacted that *' in order to prevent the making of unnecessary and vexatious costs in respect to mortgages it is hereby enacted that, where pursuant to any condition or proviso contained in a mortgage, there has been made or given any demand or notice either requiring payment of the moneys or any part thereof secured by such . mortgage, or declaring an intention to proceed under and exercise the power of salo contained in such mortgage, no further proceedings at law or in equity, and no suit or action either to enforce such mort- gage, or with respect to any clause, covenant or provision therein contained, or the lands or any part thereof thereby mortgaged shall, until after the lapse of the time at or after which, according to such demand or notice, payment" of said moneys is to be made, or said power of sale is to be exercised or proceeded under, be commenced or taken, unless and until an order permitting the same shall first be had and obtained either from the judge of any County Court or from any judge of the High Court." The order may be obtained ex parte, but only upon such affidavits and proof as will satisfy the judge that it is reasonable and equitable that the proposed suit, action or proceeding should be allowed to be taken. The effect of this enact- ment is to stay all other proceedings which the mortgagee might otherwise take until the time mentioned in the notice has elapsed, unless a judge's order is obtained permitting such proceedings to be taken. And it makes no difference whether the action is commenced before or after the notice of sale has been given (p). It will be observed that the Act stays proceedings nntil after the lapse of time mentioned in the notice. And as it is most inconvenient for the mortgagee not to be able to commence an action to recover the land in order that he may be able to give possession to a purchaser, it is recommended that ■ - , - 'J.J- 1 ■ .1.^ (o) 47 Vict. cap. 16 89C. 1. . . .-.■ ip) Perry v. Perry, 10 P. R. 275. 278 SALES UNDER POWERS IN MORTGAGES. the notice of sale aboiild specify that payment is to be made and the power exercised forthwitli. 3. Sale and conveyance. , .- . The legitimate purpose of the power being to secure the repayment of the mortgage money, it follows that if it is used for any other purpose, or to serve the purposes of others than the mortgagee, it is a fraud in the exercise of the power. Hence, where a power of sale was exercised for the purpose of ousting the mortgagor from his share in a newspaper, the sale was set aside {q). Nor must the • power be exercised in an oppressive or arbitrary manner (rK The sale must of course be bona fide ; and, if under the pretence of a sale the transaction is only an assignment of the mortgage or some other contrivance by which the mortgagee attempts to clothe himself with the absolute ownership, that would not be an execution of the power (s). And where a mortgagee in possession offered to give a portion of the mortgaged premises as a site for a hospital, but being informed that his title did not enable him to do this, sold to the hospital at a valuation and gave the price to the charity, it was held that the sale was colourable and fictitious though without dishonest intention, and theicfore not a valid exercise of the power (0- - It is not necessary that the concurrence of the mortgagor should be procured ; a power to sell with tlie mortgagor's consent Mould be no power at all, for he could always defeat a sale by withholding his consent {a). And thoso (q) Robertson v. Norris, 1 Giff, 424. (r) Matthie v. Edward$, 2 Coll. 4G5, reversed without affecting this point, 11 Jur. 761. («) Thurlow V. Mackeson, L. R. 4 Q. B. at p. 108. (t) Davey v. Dnrrant, 1 DeG. & J. 535. (u) Hampuhire v. Bradley, 2 Coll. at p. 40. SALE AND CONVEYANCE. 270 claiming under the raortgac^or have no higher righis than he has. and their consent is therefore unnecessary (r). The raoxtgagee is not a mere trustee, but has a beneficial interest in realizing the security so as to get his principal interest and costs (w). He must not exercise that right without a due regard to the interest of the mortgagor, which requires that the sale should take place as benefici- ally as if he were himself selling (x) ; but as long as be exercises it hoiiafuh for the purpose of recovering his debt, without corruption or collusion with the purchaser, the court will not interfere even though the sale be verv dis- advantageous, unless indeed the price is so low as itself to be evidence of fraud {y). When the power gives the right to sell either by public auction or private contract, it seems that the mortgagee is not bound to put up the property for sale by auction before attempting a private sale, if the offer made on the private sale is a fair one ; nor is he as a consequence bound to advertize {z). But where an estate "vas sold by offering it to an assemblage of persons called together to bid, but no advertisement had been published, and the land was sold for a little more than half the amount due on the mortgage, the sale was set aside {a). The right of the mortgagee with respect to selling dej^ends upon the terms of the power, and therefore when it authorizes a sale by public auction only, a private sale will not be valid {h). Though a mortgagee is bound to act reasonably and with the same care and prudence that a prudent man (r) Alexander \. Croahy, 1 J. tfc Lat. G()B. . , - ; -r ,'""i;*j ;: v- ^ {xc) Warner \. Jacob, L. R 20 Ch. D. 220. , ^ , ' r\i • J . - (x) Falkner v. Eq. Rev. Soc'if, 4 Drew. 855. («/) Warner v. Jacoh, L. R. 20 Ch. D. 220. ' ^^-^ -- v^- (z) Davey v. Durrant, 1 DeG. tt J. 585. See Ord v. Noel, 5 Madd. at p. 440 ; Latch v. Furlong, 12 Gr. at p. 305. (a) Richmond v. Evans, 8 Gr. 508. {b) Brouard v. Dumaresque, 8 Moo. P. C. 457 ; liounfield \. Hodges, 33 Beav. 90. 280 SALES UNDER POWERS IN MORTGAGES. would in selling his own property and preventing a sacrifice (c), he is not bound to speculate, or wait in the hope that a larger sum will be obtained, if in fact p reasonable offer is made (i). But where a mortgagee off* red the property for sale without advertisement, saying that "all he wanted was to get the money due him, and he ^•ould let the pro- perty go," the sale was set aside {e). ., -, , The duty of a mortgagee with respect to making special conditions of sale is well explained in Falkner v. Equitable Reversionary Society (/). It is there said, " This, however, must be borne in mind that though of course the object of the mortgagor is to realize the largest amount that can be got, yet it does not follow that conditions of sale, the effect of which would le to obtain the largest possible amount at the sale, are always the best for the mortgagor, for they may be such that after selling at a good price immense expense may afterwards occur, and after all you may fail in enforcing the contract, which would be to the detriment of the mortgagor. It does not follow, therefore, that because the conditions do to some extent tend to depreciate the price that will be offered at the sale, they are conditions which are really to the detriment of the mortgagor. If such a condition as this [that the vendor might rescind if unable or unwilling to answer any objection] were to the detriment of a mortgagor, it would be equally so when the absolute owner is selling ; and yet we find that it is in practice a very ordinary and reasonable condition for an absolute owner to introduce in his conditions, and one that without saying all conveyancers, but at any rate many leading conveyancers consider extremely proper to be intro- duced. When a mortgagee is selling under a power the strong impression upon my mind is this, that the question (c) Richmond v. Evans, 8 Gr. 508 ; Matthie v. Edwards, 2 Coll. 465. (d) Davey v. Durrant, 1 DeG. & J. at p. 553. (i, 1 GiF. 421, was disapproved in Nash v. Eadu, 25 Sol. J. 95, and limited in IVarih.r V. Jacob, supra. (/) NeUhorpe v. Pentn/inau, 14 Vea. 517 ; Howard v. Harding, 18 Gr. 181. (m) Downea v. Graze/irook, 3 Mer. 200 ; Whitcovib v. Minchin, 5 Madd. 01. (n) Ellis V. DcUahough, 15 Gr. 583. (o) Martinson v. Clowes, L. R. 21 Ch. D. 857. {p) Matkins v. M'Kellar, 7 Gr. 584. (q) Shan- v. Ihinnij, 2 D. J. tfe S. 468. (r) Brown v. Woodhouse, 14 Gr. 682. See also Chambers v. Waten, 3 Sim. 42 ; affirmed 11 CI. & F. 684. (s) Bnt see Parkinson v. Hanbury, 2 D. J. & S. 450. (t) Kirkwooil v. Thompson, 2 D. J. & S. 613. SALE AND CONVEYANCE. 283 When the mortgage contains a provision that the purchaser shall not be bound to inquire wuetiiCr default has been made he cannot insist upon evidence of default (»/). But in the absence of any such stipulation he is entitled to evidence, and the unsupported declaration of the mortp;agee has been held insufficient (r). As the concurrence of the mortgagor in the sale is unnecessary so it is unnecessary in the conveyance («'). But on a sale under an equitable mortgage the purchaser is entitled to have the mortgagor concur in the conveyance, or his assignees if be has become bankrupt (x). And where an outstanding term was vested in a trustee for better securing the mortgagee he was compelled to join in conveying upon a sale by the mortgagee under his power (y). The conveyance should recite the power and in addition should purport to convey under every other power enabling the mortgagee to convey according to the usual form ; but a conveyance reciting foreclosure proceedings, which pro- fessed to be made by mortgagees as absolute owners, was supported as an exercise of the power of sale, the foreclosure proceedings having been found defective (z). If from any reason the conveyance does not operate to give the purchaser a good title, it will still operate as an assignment of the mortgage (a). The purchaser will not, however, be treated as a mortgagee in possession with respect to accounting unless he is aware of his position (/>). And where he has made improvements under the belief that he is absolute owner he will be allowed for them (c). (u) lie Ir. Civil Service Bdfj. Soc'tj d- (rXeefe, 7 L. R. (Ir ) Ch. 136. (r) Holison v. Bell, 2 Beav. 17. {w) Cor(/er V. 3/or^an, 18 Ves. 344. (x) Haickins v. Ramsbottom, 1 Pr. 138. ^ iy) Hampshire v. Bradley, 2 Coll. 34. (z) Kelly V. Imp. L. d' I. Co., 11 S. C. R. 516. (a) Bright v. McMurray, 1 Ont. R. 172. {h) Parkinson v. Hanbury, L. R. 2 H. L. 1. (c) Carroll v. Robertson, 15 Gr. 173 ; Faurett v. Btiricell, 27 Gr. 445. 284 SALES UNDEB POWERS IN MORTQAOES. By statute " in every case in which any person makes lasting improvemeats on any land under the belief that the land is his own, he or his asiignees shall be entitled to a lien upon the same to the extent of the amount by which the value of such land is enhanced by such improve- ments, or ahall be entitled or may be required to retain the land if the Court is of opinion or requires that such should be done, according as may, under all the circumstances of the case, be most just, making compensation for the land, if retained, as the Cciirt may direct " (d). .j (d) R. S. O. cap. 95, sec. 4. i < . ?■ ..' i ":,"?«/ "- .,: f. APPENDTX. • ./ 5 / APPENDIX. 287 APPENDIX McINTOSH V. ROGERS. Conditions of sale— No deeds to he produced other than those in the vendors possession — Sale of land — Vendor and jturchaser. By written agreement for the purchase of land it was provided, " no title ' deeds, abstracts, or evidences of ti^le to be required other than those in the vendor's possession, nor shall the vendor be required to give a covenant for the production of the same." Held, that under this condition the vendor was relieved from the absolute obligation of making a good title to the land ; while if the evidence of title coupled with the abstract, and it may be the public register, did not disclose and prove a good title, the purchaser was not bound to complete, but in that event the vendor would not be liable for damages because of the above condition. This was an action brought by Francis Mcintosh against James Rogers, claiming specific performance of the following written agree- ment : '' London Real Estate ExcHAN(iE, Amuox Block, Ui-staiks. London, Ont., Nov, liJth, 1880. I hereby agree to purchase from Mr. Mcintosh through W. D. Buckle his agent, house No. 455 Waterloo Street, for the sum of fifteen hundred * and forty dollars, payable as follows : The present mortgage held by Mr. Glass to be assumed by the purchaser, the balance to be paid in cash on completion and tendering of conveyance. No title deeds, abstracts, or evidences of title to be required other than those in vendor's possession, nor shall the vendor be required to give a covenant for the production of the same. (Signed) James Rooeks. This offer to be good for one week from date. (Signed) James RoctErs. Possession to be given on the 1st January, 1880. (Signed) James Rogers." 288 APPENDIX. The statement of claim in the usual way set out the agreement and alleged that the plaintiff had done all things on his part to be performed, but the defendant had not paid the purchase money or performed his part of the agreement. By his statement of defence the defendant set up that : 3. " After the making of the said agreement, the plaintiff's solicitor furnished the defendant with an abstract of the title and some of the title deeds to the said lands, but refused to verify the abstract or satis- factorily answer the defendant's requisitions on title, or to furnish to him any sufficient or satisfactory evidence or proof of title, or even to furnish to him the title deeds and evidences of title in the plaintiff's possession or control, although often requested so to do ; nor has the plaintiff tendered to the defendant a sufficient or any conveyance of said lands as required by said agreement. 4. " The plaintiff has not at any time since the making or entering into of said agreement, furnished or presented to the defendant a good or sufficient title to said lands and premises, and the title deeds and evidences of title furnished to the defendant by the jjlaintiff, or which he has been able to obtain, do not shew a good title to said lands in the plaintiff, such as the defendant is bound to accept, and from such title deeds and evidences of title, it does not appear that the plaintiff has or can furnish or convey a good title thereto. 5. " The defendant submits that the plaintiff is bound to convey to him a good title to said lands, and to furnish him with proper and suf- ficient evidences of such title, and to sufficiently and satisfactorily answer and comply with his reasonable requisitions on title." The defendant also set up other matter not necessary to be mentioned here, and by way of counter-claim, asked that the pla-'ntiff might be ordered to specifically perform the contract on his part and furnish and convey to him a good title to the lands, with sufficient and satisfactory title deeds and evidences in proof of such title, and damages in default of the plaintiff being able to furnish a good title. " * • ' -/ The action was tried before Bo;yd, C, at London, on March 18th, 1887. G. W. Marsh, for the defendant, the purchaser, cited Dart on Vendors and Purchasers, oth ed., p. 155; Osborne v. Harvey, 7 Jur. 229; Gabriel V. Smith, 16 Q. B. 847, 858 ; Southhy v. Unit, 2 M. ct Ci. 207; Symons v. James, 1 Y. (fe C. C. C. 487 ; Seaton v. Mapp, 2 Coll. 55<); Ithodes v. Ibbet- Hon, 4 Devj. M. it G. 787 ; Hoy v. Smythies, 22 Beiv. 510 ; Edwards v. JVickwar, L. R. 1 Eq. 08 ; Canada Pcrnanent Building Society v. Wallis, 8 Gr. 3()8; Harnett v. liaker, L. R. 20 Eq. 5(); In re Mar^^h and Karl Gran- ville, 24 Ch. D. 11 ; Leslie v. Preston, 7 Gr. 484 ; In re Hiygins and Hitch man's Contract, 21 Ch. D. 99 ; In re Yielding v. U'esthrooke. 31 Ch. D. 344. The vendor must shew a good title. APPENDIX. 28*J W. W. Fitzgerald, for the vendor. The registry laws make a difference in the practice here from that in England. The plaintiff only asks exemption from production of deeds not in his hands or power, but not from conveying a good title. April 6th, 1887. Bo^ ■ , C. — The sole point I have to decide is upon the proper construction of the contract of sale which is set forth in the pleadings, and is signed by the defendant only. It is in these words: •' I hereby agree, &c." The plaintiff admits that if he cannot convey a good title there is no sale, but the dispute is that the defendant claims it lies upon the plaintiff to show or prove a good title at Ijis own expense, and the plaintiff claims that he has to do this only so far as he has muniments of title in his own possession. Davidson says " conditions of sale must be so prepared as to be clear and intelligible to a man of ordinary understanding. They must clearly tell the purchaser what he is not to require ; and must not be of such a nature as to mislead or deceive him." Prec. of Conv. 3rd ed. Vol. 1, p. 442. This contract says plainly enough that " no title deeds, abstracts, or evidences of title are to be required other than those in the vendor's possession." It appears from the defence that an abstract of title has been furnished, and as its sufficiency is not complained of I assume that it is "complete" in the usual sense, and tliat a good title is exhibited on its face. Some of the title deeds it is alleged by the defendant have also been furnished, but not all that are in the plaintiff's possession or control. If this be so, the plaintiff is in the wrong at this point. But it is further asserted (and this is the crux) that the plaintiff has refused to verify the said abstract outside of these, or to satisfactorily answer the defendant's requisitions on title. Hence the difficulties arise as to the verification of the abstract. Prima facie the vendor should produce all deeds and e.idences of title in his possession or under his control, and procure at his own expense copies of all others. But this term, which would be implied, is modir.ed by the condition I have quoted, which goes to absolve the vendor from making verifxation at his own expense beyond the documents in his own hands. It would follow that information desired outside of this limit should be sought for at the purchaser's expense if he is anxious to complete the transaction. Isow it is an ordinary condition to throw on the purchaser the expense of procuring evidence to verify the abstract, and that term is to some extent involved in the clause now under consideration : See Cole, Conditions of Sale, p. 30; David» -- , 2. For quiet possession free from incumbrances. 3. For further assurance. 4. To produce title deeds. 5. Against encumbrances by him. EEiiEASE of all claims, and Bar of Dower. Executed by John Nokes and Jane Nokes, and attested by one witness. Certificate of registration endorsed. 8647— 2nd July, 1792. 3rd October, 1792. Mortgage. Abraham Smith, 1st pt., Susan Smith, 2nd pt., John Nokes, 3rd pt. Cons. £100. Same land. Bargain, sell, etc., and mortgage to John Nokes, his hrs. and assns. forever. Proviso for being void on paymt. of £100 and int. as therein set out. APPENDIX. 293 • Covenants by Abraham Smith, - - 1. To pay mtge. money, etc. 2. For good title in fee simple. 3. Right to convey. 4. Quiet possession on default free from incumbrances. 5. Further assurance. ^ 6. Against incumbrances by him. Belease of all claims, and Bar of Dower. Power of sale to be exercised on default in paymt. upon notice. Provisoes for distress for arrears of int., accelerating paymt. of prin. on default in paymt. of int., and for quiet possession by the mtgor. until default. Executed by Abraham Smith and Susan Smith in presence of two witnesses. Certificate of registration endorsed. ,. 10673— 4th July, 1800. 5th July, 1800. Statutory Discharge of above mortgage signed by John Nokes. Certificate of the registration of this discharge endorsed on the mortgage. 11671.— 10th May, 1805. 11th May, 1805. Bargain and Sale. Abrah.oi Smith, widower, 1st pt., William Green, 2nd pt. Cons. £500. Same land. Bargain, sell, etc., to Willum Green, his hrs. and assns. forever. H.ABENDUM, to sd. W. G., his hrs. and assns. forever. Coven.vnts by Abraham Smith, ,^ ^ 1. Bight to convey. 2. For quiet possession free from incumbrances. 3. For further assurance. 4. Against incumbrances by him. Kelease of all claims. Jiixecuted by Abraham Smith in presence of one witness. Certificate of registration endorsed. Statutory declaration by C. D., an acquaintance of Abraham Smith, of death of Susan Smith, his wife. AS TO EAST HALF OF LOT THBEE. 11890— 1st October. 1820. 2nd October, 1820, Conveyance. William Green, Ist pt., Sarah Green, hi i wife, 2nd pt., John Gbekn, 3rd pt. 294 APPENDIX. Recitals. John Green is son of William Green ; desire of William Green to advance him in pursuance of which he makes this conveyance. Cons. Natural love and affection and five shillings. East J of lot three. Bargain, sell alien, transfer, assign, enfeoff, etc., to John Green, his hrs. and assns. forever. * H.A.BENDUM, to John Green, his hrs. and assns. forever. Release of all claims. No covenants. Bau of Dower. Executed by WiLLL^M Green and Sarah Green in presence of one witness. Certificate of registration endorsed. 12340.— 12th April, 1835. 13th April, 1835. Mortgage. John Green, 1st pt., Emily Green, his wife, 2nd pt., James Toler, 3rd pt. Cons. £600. Same land. Grant and mtge. to James Toler, his hrs. and assus. forever. Same land. Proviso for being void on paymt. of £600 at expiration of five years with int. half-yearly at 7 p. c. on 2rid January and 2nd July in each year, till whole am't. be pd. CovENAN-^s by John Green. . . To pay mortgage money, etc. 2. For good title in fee simple. ' - 3. Right to convey. 4. Quiet possession on default free from incumbrances. 5. Further assurance. 6. Against incumbrances by him. Release of all claims, and Bar of Dower. Power of Sale, on default in payment of principal or interest or any part for two months, after written notice to mortgagor, his heirs or assigns, personally or at last known residence in this Province, not less than one month before sale, by public auction or private contract, whole lands or part, mortgagee to stand possessed of proceeds in trust to pay mortgage money, interest, costs, expenses, taxes, insurance, etc., and pay surplus, if any, to mortgagor, his executors, administrators or assigns. Provisoes for distress for arrears of interest, accelerating paymt. of prin. on default in paymt. of int., and for quietjpossession by mtgor. until default. Executed by John Green and Emily Green in presence of one witness. Certificate of registration endorsed. The said John Green died intestate on 15th June, 1840, leaving him surviving his widow, the said Emily Green, and an infant daughter, his only child. On 10th November, 1840, letters of administration of APPENDIX. 295 the personal estate and effects of the said John Green were granted by the Surrogate Court of the County of to the said Emily Green. On the same day letters of guardianship to the said infant daughter were granted by the same Court to the sd. Emily Green. 13401 — 12th May, 1842. Conveyance. James Toler, Istpt., John Smith, 2nd pt. Recitals, That John Green, by Indre. bearing date 12th April, 1835 [further describing mtge. by Green to Toler] did mtge. land therein and hereinafter described to James ToLrR, etc., which contained proviso for being void on paymt. of, etc., and also a power of sale [abstract shortly] ; that default was made in paymt. of int. which fell due on, etc., whereby the whole prin. money also fell due, and more than two months elapsed, etc. ; that John Green departed this life on, etc, leaving him surviving, etc, ; that notice was given in writing to sd, [infant daughter] his heir- at-law by delivering a copy thereof to her, and also a copy to the sd. Emily Green, her guardian, duly appointed by the Surrogate Court of the county of , of intention to exercise the power of sale in said mtge, and more than one month elapsed thereafter ; that sd, land was exposed for sale by public auction after being duly advertised for sale by E. F., auctioneer, at , and that no bid was obtained therefor ; that subsequently John Smith offered for the sd. land the sum of IIOOO. Cons, ^1000. Same land. ' Grant to John Smith, his hrs. and assns. forever in pursuance of the power of sale, etc , and all other powers, etc. Habendum, to John Smith, his heirs and assns. forever. Covenants, by James Toler that he has done no act to encumber. Executed by James Toler, in presence of one witness. Certificate of registration endorsed. - Affidavits, of posting up and publication in newspapers of advertise- ments for sale of land ; of service of notices of sale ; of auctioneer as to attempted sale by him ; of default in payment of interest. 14670— 12th December, 1807. 13th December, 1867. Grant. John Smith, Ist pt., Abel Green, 2nd pt., Adelia Smith, 3rd pt. In duplicate. In pursuance of the Short Forms Act. Cons. $2000. Grant, to Abel Green, his hrs. and assns. forever. Habendum, to A.bel Green, his hrs. and assns. forever. Covenants, Short form. Bar of Dower and Release of all claims. Executed by John Smith and Adelia Smith in presence of one witness. Certificate of registration endorsed. 296 APPENDIX. AS TO WEST HALF OF LOT THREE. The said William Green died intestate on the Ist November, 1853, leaving him surviving two daughters, Amelia Gkekn, Adelaide Snooks, wife of George Snooks, tiiree sonr Ahel Gueen, Jason Green and Samuel Green, and Victoria Green, the infant daughter of a deceased son, John Green. Affidavits, of X. Y., N. M. and others. Certificate of burial of Wil- liam Green. Letters of administration granted by Surrogate Court to Abel Green. 14506— 10th June, 1860. loth June I860. Memorial of Partition deed. Amelia Green, Ist pt., Adelaide Snooks and George Snooks, 2ud pt., Abel Grej n, ^ri pt., Jason Green, 4th pt., Samuel Green, 5th pt., Vic- toria Gi.Er:N, Gth pt. Recitals. That William Green was seised in fee and died intestate, etc., leaving him surviving parties hereto, etc. Agreement to partition by allotting one sixth part hereinafter described to Amelia Green who agreed to accept same, etc., and by allotting to Abel Green residue in consideration of paying to each of the others except Amelia Green, $500. Cons. ^500 pd. to each of said parties except Amelia Green by sd. Abel Green. Grant and release by all sd. parties except Abll Green to Abel Green, his hrs. and assns. forever, all west half of lot three, except part par- ticularly described and by this deed conveyed, or intended to be, to Amelia Green. Cons, agreement to maka partition and $1.00. All said parties except Amelia Green,' grant and release to Amelia Green, her hrs. and assns. forevar that pt. of lot three described as follows [describe it] . Habendum to each of sd. parties, their heirs and assns. respectively, the sd. parcels respectively. Executed by all parties in presence of two witnesses. Memorial signed by Abel Green. Certified copy produced. The deed of which this is a memorial is not in the possession, custody or power of the vendor. Certificate of burial of Sarah Green, wife of William Green. CfiRTiFiCATa of baptism of Victoria Green, showing her to be twenty- two years of age. APPENDIX. 297 lOth August, 1874. Will. Amelia Green, by her will of this date exe- cuted in presence of two witnesses present at the same time, who subscribed in presence of the testator, devised as follows : — " I leave the lot of land I occupy next to my brother Abel, part of the old home- stead, to my brother Abel for his own use." The vendor will register this will. AS TO LOT FOUR. 8th July, 1805. Letters patent. Grant to James Brown, his hrs. and assns. forever. Cons. £50. Lot four in the second concession of , Under the Great Seal of the Province. 2873.— 1st October, 1810. 3rd July, 1830. Lease. James Brown, Ist pt. Abraham Elliott, 2nd pt. Cons, of rents, pro- visoes, and conditions. Demise to Abraham Elliott, his exors., admrs. and assns. Same land. Rent £1 per acre per annum, payable annually. Term, 500 years. Covenants by Abraham Elliott, 1. To pay rent. 2. To pay taxes. • • ' 3. Not to cut timber. 4. Not to assign or sub-let without leave. 5. To build a house of brick and stone worth at least £500. Covenant by lessor for quiet enjoyment. Proviso for re-entry on non-payment of rent or non-performance of covenants. Executed by both parties in presence of one witness. Certificate of registration endorsed. 1976._l8t August, 1820. 8th August, 1821. Memorial of Bargain and Sale. James Brown, 1st pt., Wm. Grant, 2nd pt., Ame'uIA Brown, 3rd pt. Cons. £200. Same land. Bargain, sell, alien, etc., to Wm. Grant, his hrs. and assns. forever. Habendum to said Wm. Gr.vnt, his hrs. and assns. forever. Bar of Dower. Executed by James Brown and Amelia Brown in presence of two witnesses. Memorial signed by William Grant. Certified copy produced. 298 APPENDIX. The deed of which this is a memorial is not in the possession, custody or power of the vendor, but affidavits of A., B. and C. are produced, showing that James Brown was in possession at the time of the deed and gave possession to Wm. Grant, who occupied uutil he sold. 2001— 10th February, 1830. 15th February. 1830. Memorial of Bargain and Sale. William Grant, Ist pt., Georoe Smith, 2nd pt. Cons. £100. Same land. Grant, bargain, sell, etc., to George Smith, his hrs. and assns. forever. Executed by William Grant in presence of two witnesses. Memorial signed by William Grant. Certified copy produced. The deed of which this is a memorial is not in the possession, custody or power of the vendor. DecLARATioNS, of E., F. and G. that William Grant was unmarried on 10th February, 1830. The said Abraham Elliott died intestate on the 7th October, 1820, and on the 12th December, 1829, letters of administration of the estate and effects were granted to Jane Elliott by the Surrogate Court of the county of . 2680— 12th May, 1830. 13th May, 1830. Surrender. Jane Elliott, administratrix, Ist pt., George Smith, 2nd pt. Cons. £10. Same land. Surrender and yield up, etc., all the term unexpired, etc. Executed by Jane Elliott, administratrix, in presence of two witnesses. Certificate of registration endorsed. 3967— 11th June, 1841. 12th June, 1841. Mortgage. George Smith, 1st pt., "Rmily Smith, his wife, 2nd pt., The Loan and Investment Co., 3rd pt. Cons. $1000. Same land. Grant and mtge. to the Loan & Inv. Co,, their succrs. and assns. Proviso for being void on paymt. of $1800 in ten equal annual instal- ments of $180. Release of all claims subject to proviso. Bar op Doweb, APPENDIX. 299 Covenants by Geoboe Bmith, 1. To pay mortgage money. 2. For ^{ood titl in fee simple. ' 8. Right to convey. 4. Quiet poHsession on default. 6. Further assurance. 6. Against incumbrances by him. Power of Sale to be exercised as therein set forth. Provisoes for acceleration of paymt. of all instalments on default in one ; for distress for arrears ; quiet possession till default. Executed by George Smith and Emily Smith in presence of two witnesses. Cert, of regis'n. endorsed. 5680.— 6th August, 1845. 7th August, 1845. Grant. George Smith, 1st pt., Rohert Black, 2nd pt. Cons. $500. Same land. Grant, bargain, sell, etc., to Ro;jert Bl.vck, his hrs. and assns. forever. Covenants by George Smith, , . 1. Right to convey. 2. For quiet possession free from incumbrances except a mortgage to The Loan and Investment Co. 3. For further assurance. 4. Against incumbrances except sd. mortgage. Release of all claims. Covenant, by Robert Black to pay ofif the mtge. to The Loan and In- vestment Co. and indemnify George Smith against same. Executed by both parties in presence of one witness. Certificate of registration endorse;!.. 5967._7th March. 1846. 10th March, 1846. Mortgage. Robert Black, 1st pt., Frank Moses, 2nd pt., Edith Black, 3rd pt. Cons. $500. Same land. Grant and mtge. to Fr.^nk Moses, his hrs. £-nd assns. forever. Proviso for being void on payment of $500 in five years with interest at 8 per cent, per annum yearly. Covenants by Robert Black, 1. To pay mtge. money. 2. For good title, subject to mtge. to Loan and Inv. Co. 3. Right to convey. 4. Quiet possession on default free from incumbrances except sd. mtge. 300 APPENDIX. 5. Further assurance. . , , .. 6. Against incuinbrances except sd. mtge. Release of all claims subject to the proviso. Bar of Dower. Power of Sale to be exercised as therein set out. Provisoes for distress, accelerating paymt. of prin. on default, quiet pos- session till default. Executed by Robert Black and Edith Black in presence of one witness. Certificate of registration endorsed. 8721. — 13th January, 1850. 14th January, 1850. Final order of fore- closure. In a certain suit in the Court of Chancery commenced by bill to foreclose the mortgage made by George Smith to the Loan and Inv. Co., wherein the Loan and Inv. Co. were plaintiff and Robert Black was a deft, by bill, and Frank Moses, a second mtgee, and Abraham Lennox and Smith Fergus, execution creditors of JIobert Black were defts. added in the Master's office, such proceedings were had and taken that upon the 2nd November, 1848, a Decree was made referring it to the Master to take the necessary accounts and make the necessary enquiries for redemption or foreclosure of the land mortgaged to the Loan and Inv. Co. by George Smith ; that on the 15th January, 1849, the said Master made his report, finding, etc., which was duly filed and became absolute ; and no person having redeemed, etc., upon the 13tii January, 1850, all the said defts. were absolutely foreclosed. Decree, office copy report, and final order of foreclosure produced. Certificate of registration endors3d on latter. 9680.— 10th September, 1852. 12th September, 1852. Grant. The Loan and Investment Co., Ist pt., William Bates, 2nd pt. Cons. »2000. Same land. Grant to William Bates, his hrs, and assns. forever. Habendum to William Bates, his hrs. and assns. forever. CovEii.^i'.To by Lo.\.n and Inv. Co. against incumbrances by them and for further assurance. Executed by affixing seal of Co. attested by E. H. as President, and X. Y., Manager. Certificate of registration endorsed. 10340 —12th September, 1852. 12th September, 1852. Mortgage. Wm. Bates, 1st pt., Jane Bates, 2nd pt., Henry Manning 3rd pt. Cons. ^1000. Same lands. Grant and ratge. to Henry Manning, his hrs. and assns. forever. APPENDIX. 301 Proviso for redemption on payment of $1000 with interest at 8 p. c. per annum in five years. Covenants by Wm. Bates, 1. Right to convey. 2. For quiet possesion. 3. For further assurance. 4. Against incumbrances by him. Release of all claims subject to proviso. Bar of Dower. . . '..= Executed by William Bates and Jane Bates in presence of two wit. nesses. Certificate of registration endorsed. 1148.— 10th January, 1860. 11th January, 1860. Vesting ordci. In a certain suit in the Court of Chancery brought for the sale of the said land mortgaged by William Bates to Henry Manning, wherein Henry Manning was plaintiff, and William Bates was deft, such pro- ceedings were had and taken that on the 2nd February, 1859, a Decree was made whereby it was decreed that if the said William Bates did not pay the sum of $1,259 to the said Henry Manning on or before the 3rd August, 1859, the said mortgaged premises should be sold, etc.; that, no payment having been made pursuant to the sd. Decree, on the 2nd September, 1859, a final order for the sale of the said mtged. premises was made ; that pursuant to the advtmt. of the Master in Ordinary the said mtged. lands were exposed for sale by C. D., auctioneer, and Edward Irving was declared to be the highest bidder and the purchaser thereof ; that the Master made his report so declaring him which was duly filed and became absolute ; that afterwards on the 10th January, 1860, an order was made vesting in Edward Irving his hrs. and assns. forever, all the estate, right, title and interest of the plff. and deft, in and to the sd. land. Decree, Office copy, Report on sale, final order for sale, and Vesting order produced. Certificate of registration endorsed on latter. , - The said Edward Irving died intestate on the 3rd July, 1866, and on 2nd August, 1886, letters of administration of all his estate and effects real and personal were granted to William Irving by the Surrogate Court of the county of . Letters of administration and Statutory certificate of death produced. Declarations of William Irving, Jane Irving, and Edward A. Irving of ineffectual search for will, that W^ilUam Irving, their father, always expressed an aversion to making a will, and declared he never would make one, etc. 302 ^ APPENDIX. 13921— 10th December, 1886. 11th December, 1886 Grant. William Irvix^, administrator of the estate and effects, real and personal of Edward Irving, 1st pt. Abel Green, 2nd pt., Elizabeth Irving, 3rd pt. - . • .... Cons. ^3000. Same land. . ' . By this deed " the said William Irving doth grant unto the said Abel Green, in fee simple, lot, etc." Bar of Dower. Executed by William Irving, adm., in presence of one witness. In duplicate. Certificate of registration endorsed. A deed of confirmation from Jane Irving and Edward Irving can be obtained at the purchaser's expense if he desires it, but the vendor does not admit that it is necessary. AS TO LOTS THREE AND FOUR. 14670— 5th January, 1887. 6th January, 1887. Grant. ; Abel Green, 1st pt. Allan Burr, 2nd pare. Cordelia Green, 3rd pt. Cons. ^3000. Lots three and four. By this deed Abel Green " doth grant to Allan Burr, all and sin- gular, etc." Bab of Dower. Executed by Abel Green and Cordelia Green, in presence of one witness. Certificate of registration endorsed. There are no executions against the lands of Abel Green or Allan Burr. All taxes except those of the current year have been paid. Receipts will be produced. ENDORSEMENT. Take notice that you are required to serve requisitions and objec- tions within days [according to the time specified in the contract] , from service hereof. Dated 1887. To Messrs. Yours, etc., A. B.&C, X. Y. &Z. Purchaser's Solicitors. Vendor's Solicitors. INDEX. INDEX. .■5>, Abstract, commencement of, 29 contents of, 35, «( seg. delivery of, 24 waiver of, acceptance of title, 19 index, right to examine, 66 . 60 years title, 27, 28 less than 60 years, 33 more than 60 years, 30, 31 objections to, 24 perfect, 39 precedent for, 291 purchaser's right to, 22, 23 ' registrar's, 63, ef s^g. not evidence of title, 64 nor of registered instrument, 64 should be taken from instruments, «>l should not show equitable interests, 36 should show registered clouds. 3(5 verification of, 79, et seq. Administration, letters of, presumptive evidence of intestacy, 112, 213, 215. 223 Administrator cannot make good title for a year, 223 should convey to next of kin when distributing, 224 Affidavit on memorial 20 years old evidence of execution of deed, 92 Air, right to, 158 Appointment by will, how executed, 231 Attorney, deed executed by, 89 A.T.— 20 8oe INDES '■ B Bare trustee, depositary of legal estate, 220 devisee in trust is, when court administers, 220 estate of, vests in personal representative, 220 vendor is not, 220 Bastard deed, cancellation of, 133 . . , Birth proved hy statutory certificate, 94, 218 Books and documents, when proved by extracts, 93 By-laws proved by certified copies, 93 c Cancellation of fraudulent deeds, 133 void deeds, 134 Certificates of public officers, 106 Clouds, registered, 132 should be abstracted, 36 Commissioner cannot take statutory declaration, 95 Concealment of documents, 37, 114 effect of vendor and purchaser act, 38 Conditions limiting title are valid, 7 must be clear, 7, 80 stvictly construed, 7 . for rescissjoa construed strictly, 10 d)es not protect fraudulent vendor, 11 on objection to conveyance improper, 10 vendor with knowledge of defect cannot take advau. tage of, 11 Consideration, acknowledgment of, in deed sufficient, 92 Consolidation of mortgages, G2 none as against registered purchaser with- out notice, 63 Contract, open, purchaser's right to good title, 6 rescission of, under condition, 9, et seq. cannot be arbitrarily rescinded under condition for rescission, U Conveyance, preparation of, acceptance of title, 20 Copies, certified under registry act, 83, 86, et seq. Counsel's opinion, not acceptance of title, 20 Covenant against incumbrances not broken till purchaser disturbed, 11*^ purchaser must rely on, after conveyance, 11;) unless vendor guilty of fraud, 11" INDEX. 307 Covenant to produce, 172 runs with land, 173 what it extends to, 171 Crown bonds, 137, 138 Lands records, how proved, 93 Curtesy, tenancy by, 147, et seq. Death, how proved, 94 by statutory certificate, 'Jl8 * when presumed, 107, 219 Declaration, statutory, as evidence. 95 cannot be taken by commissioner, 95 Declaratory judgment as to void deeds, 136 Decree, purchaser under, should see that sale conforms to, 255 Deeds, copies of, registered by memorial need not be produced, 83 custody of, 172 , ;-, when land sold in lots, 173 , executed by attorney, how proved, 89 execution of, need not be proved, 88 proved by registration, 88 afi&davit on memorial 20 years old, 92 inability to produce, 171 * must be produced by mortgagee since Conveyancing Act, 81 vendor, 80, 83 but not if not in his possession, 83 presumption in favour of, J 05 purchaser's right to, 170 not bound to ask for, 170 recovery of, after conveyance. 172 registered in duplicate, not records, 85 ' right to certified copies of, 171 30 years old prove themselves, 89, 105 unregistered, void against purchaser without notice, 170 but good between parties, 77 Delay, evidence of acceptance of title, 17 Descant after Ist January, 1852, 217 before 1852, 215 traced from person last seised, 213 Devisee presumed to accept devise, 111 Devolution of Estates Act, 222, et seq., 231 personal representative takes under, 222 808 INDEX. Discharge of mortgage, 168, 169 -' • , •"./-. is a record, 82 Doubtful title, 175, etseq. amount of doubt necessary, 180 classification of, 181, et seq. construction of instrument, 187, 188 difference of judicial opinion, 184 legal opinion, 187 general principle of law, 189 probability of litigation, 180, 182 uncertainty of fact, 189 court formerly expressed opinion on, 177 - now disposes of questions of law, 179 defined, 2, 3 ... . ", doctrine of , is equitable, 179 : origin of, 175 Dower, 141, et seq. action of, lies after 7 years absence of husband unheard of, 108 bar of, in mortgage, effect of, 145 barred, how it may be, 146 equitable estate, when subject to, 144 extinguished by sale for taxes, 145 * • ■" - not, by sale under execution, 145 partnership lands, none in, 144 release of, must be procured by vendor, 141 requisites of, 141 when does not attach, 143 widow may take one-third absolutely in liei: of, 146 Drainage, taxes for, 123, et seq. E Easements, 159, et seq. distinguished from profit a prendre, 157 license, 158 Equitable estate, when subject to dower, 144 curtesy, 157 interests do not prevail against registered title, 44, 58, et seq.,!'^ notice of, must be actual, 73 should not be abstracted, 36 Equity of redemption, effect of sale of, under execution, 259 purchaser of, under execution must pav mortgage, 128 when subject to execution, 128, ft > such as vendor has, 8 * ■- ^ '- v- -.- Trespasser taking conveyance presumed to claim under, 111 Trust estate, when saleable under execution, 132 Trustees should not be so described in mortgage, 30 Vendor a,ud purchaser, presumptions between, 108 must elect to answer objections or rescind under condition, 12 Vendor's lien, 137 personal representative may convey, 220 Vesting order, 256, et seq. Void deed, cancellation of, 134 Voluntary deed, cancellation of, 134 registered deed good againtit purchaser, 74 w Waiver of right to good title, 6 after contract, 15 before contract, 6 by contract, 6 by possession, 16 particular objection, 21, 22 preparing conveyance, 20 question of fact, 16 re-sale. 19 objections, when vendor can rescind, 13 318 INDEX. Water, rights respecting, 159. 160 Way of necessity, 161 exercisable while necessity exists, 102 grantor cannot create necessity by his own act 162 et seq. ' ' must be suitable, 162 need not be most convenient, 162 selected by whom, 162 :,• right of, 160, et seq. .,;. , Wild land not subject to dower. 143 '..<••. Will, attestation of . 226, ef «^g. • . ;. ^^-v' execution of, before 1874, 224 ' « after 1st January, 1874, 22o ' mode of, 229 evidence of, 94, 224 married women, 232. 233 must be produced to purchaser from heir, 215 registration of, 214. 233, 234 Women past child-bearing. 109 .* 8590 i